THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


THE  DEVELOPMENT  OF 
THE   STATE 

ITS  GOVERNMENTAL  ORGANIZATION 
AND   ITS   ACTIVITIES 


BY 


JAMES   QUAYLE   DEALEY,  Ph.D. 

PEOFESSOR  OF  SOCIAL   AND   POLITICAL  SCIENCE 
AT  BROWN   UNIVERSITY 


SILVER,  BURDETT  &  COMPANY 

NEW  YORK  BOSTON  CHICAGO 


3  (^tfb. 


b 


COPYKIOHT,   1909,  BY 

SILVER,  BURDETT  &  COMPANY 


TO 


PREFACE 

This  work  contains  in  brief  form  the  essential  princi- 
ples of  the  development  of  the  state,  its  several  govern- 
mental agencies  and  its  activities. 

The  writer  has  endeavored  to  show  that  the  state  de- 
velops in  accord  with  definite  laws  and  principles,  and 
that  these  are  largely  determined  by  the  conditions  of 
economic  and  intellectual  life.  Progress  comes  there- 
fore by  purposive  modification  of  such  conditions  through 
a  governmental  policy  based  on  scientific  knowledge. 

An  attempt  to  cover  so  broad  a  field  necessarily  in- 
volves neglect  of  details  and  occasional  poverty  of  illus- 
tration, but  numerous  references  for  wider  reading  and 
further  study  may  in  part  atone  for  imperfections  of  that 
sort. 

It  is  hoped  that  from  this  epitome  of  the  development 
of  the  state,  the  student  and  the  general  reader  may 
obtain  an  outline  of  political  organization  and  activity, 
so  coordinated,  that  he  will  be  able  to  understand  more 
clearly  the  m^eaning  of  political  institutions.  In  this  age 
of  democracy  it  is  needful  that  all  citizens  comprehend 
the  meaning  of  world  politics,  as  well  as  the  more  hum- 
ble field  of  national  administration. 

Other  things  being  equal,  power  goes  to  the  state 
most  capable  of  wielding  it,  and  national  greatness  ulti- 
mately depends  on  an  intelligent  citizen-body  striving  for 

3 


4  PREFACE 

a  definite  end.  A  knowledge  of  governmental  develop- 
ment should  make  more  clear  the  means  to  be  utilized 
for  the  attainment  of  that  end,  and  what  that  end  should 
be.  These  means,  it  is  argued,  are  general  economic 
well-being  and  intelligence,  the  fundamental  conditions 
for  the  maintenance  of  democratic  forms  of  government. 

J.  Q.  Dealey. 


CONTENTS 


J>ocial  anti  J^oUtical  2DebeIopment 

CHAPTER  I 
SOCIAL  DEVELOPMENT 

SoaAL  Institutions 13 

The  Growth  of  Civilization:  Meaning  of  civilization.  Its 
earlier  stages.  Civilization  traced  through  certain  institu- 
tions.    The  progress  of  civilization 14 

Conditions  that  Affect  Social  Development:  The  three 
fundamental  conditions.  Necessity  of  abundant  food 
supplies  and  metals.  Expansion  through  commerce.  Ex- 
pansion through  manufactures.  The  question  of  popula- 
tion. The  standard  of  living.  The  stimulus  of  economic 
opportunity.     The  mentality  of  a  people     .        .        .        .       18 

CHAPTER   II 
STAGES  IN  THE  DEVELOPMENT  OF  THE  STATE 

The  Four  Stages 26 

I.  The  Primitive  Period:     The   age    of    beginnings.     The 

embryonic  state 28 

II.  The  Period  of  Settled  Social  Institutions:    The  factors 

in  development.  Elements  of  permanency.  Agriculture. 
Slavery.  Changes  in  tribal  organization.  The  village 
community.     The  loose  confederation.     The  developing 

state 30 

5 


6  CONTENTS 

III.  The  Period  of  Urban  Civilization:  The  influence  of 
commerce.  Changes  in  political  organization.  Central- 
ized monarchy.     National  states 37 

rv.  The  Period  of  Industrial  Civilization:  The  problem 
of  sufficient  food  supplies.  Importance  of  the  tool.  Utili- 
zation of  the  powers  of  nature.  The  struggle  for  suprem- 
acy.    Aspects  of  the  state 41 


€f)e  J>obereigntp  of  tfje  ^tate 

CHAPTER  III 

POLITICAL  SCIENCE  AND   SOVEREIGNTY 

The  Field  op  Political  Science.     Its  General  Divisions. 

Its  Relation  to  Sociology.     Definition  of  Terms     .        .       51 

Sovereignty:  The  meaning  of  sovereignty.  Limitations  on 
government.  Development  of  the  idea  of  sovereignty. 
Modern  meaning  of  "life  and  property."  Importance  of 
pohtical  theories 55 

CHAPTER  IV 
ESSENTIAL  POWERS  OF  THE  STATE 

Sovereignty  Identified  with  the  Essential  Powers       ,       63 

Forms  of  Taxation :  Taxation  through  service.     Taxation  of 

property.     The  budget.     Assessment  and  collection  .       .       65 

Sovereign  Powers  in  Exercise  : 

I.  The  War  Power  of  the  State:    War  and  peace.     Service 

in  the  army  or  navy.  Diplomacy.  International  law. 
Government  of  conquered  provinces.     Future  of  war      .       70 

II.  The  Preservation  of  Domestic  Peace:  Social  regulation 

of  crime.  Suppression  of  outlawry.  Breaches  of  the  peace. 
A  system  of  fines.  Theories  of  punishment.  Regulation 
of  crimes  against  property.  Regulation  of  civil  disputes. 
The  natural  process 80 


CONTENTS  7 

CHAPTER  V 

ESSENTIAL   POWERS   OF  THE  STATE— Continued 

III.  Economic  Regulation.  The  Ownership  of  Land: 
Based  originally  on  use.  Individual  use.  Communal 
ownership.  The  rise  of  personal  ownership.  Survivals 
of  communal  ownerships 88 

Food  Supplies.  Colonization.  Commerce:  The  market 
place.  A  medium  of  exchange.  The  bank.  State  regu- 
lation          94 

Manufacturing:      The      artisan.       The    larger     industries. 

Regulation  of  labor         .        .        .."....     101 

rV.  The  Family  in  its  Relation  to  the  State :  The  matriarchal 
family.  Rise  of  the  patriarchal  family.  Relation 
horde  to  the  state.  Groups  in  the  community.  The  ] 
patriarchal  family  and  the  state.  The  modern  family 
The  Relation  of  Church  and  State:  The  totem.  An- 
cestor worship.  Influence  of  the  church  in  patriarchal 
times.  Beginnings  of  the  separation  of  church  and  state. 
Subordination  of  the  church  to  the  state.  Separation  of 
church  and  state.  Increased  jurisdiction  of  the  state. 
The  church  independent 109 


.       .     101 
iarchal  ^^ 
of  the       / 
le  later      /    ' 
ily      ..^io^" 


€f)c  45obernment 


CHAPTER  VI 
THE   ORGANIZATION   OF   THE   STATE 

Definition  of  Government.  Classification  of  Govern- 
ments :  The  Greek  classification.  Classification  by  form. 
Classification  based  on  the  spirit  of  government         .        .     119 

The  Federation:  Contrasted  with  confederation.  Its  util- 
ity.    The  dual  form  of  federal  government.        .        .        .123 

The  Departments  and  Functions  of  Government:  De- 
partments of  government.  Classes  of  governmental 
functions.  The  development  of  departments.  The  execu- 
tive department.  Limitations  on  royal  power.  Develop- 
ment of  administrative  and  legislative  bodies.  The 
fundamental  laws  of  Russia 127 


8  CONTENTS 

The  Separation  or  Differentiation  of  Powers:  Develop- 
ment of  the  theory  of  separation.  The  usual  powers  of 
the  three  departments.  Checks  and  balances.  The 
separation  of  administration.  The  legal  sovereign.  The 
supreme  court  as  final  interpreter  of  the  constitution. 
The  electorate.     A  broader  definition  of  government  137 

CHAPTER   VII 
THE   EXECUTIVE   DEPARTMENT   AND   ITS   POWERS 

Powers  of  the  Executive 147 

Headship   of  the   State:   Rise  of  monarchy.     Royal  power. 

Limited  by  constitution.  Types  of  governmental  headship.     148 

The    Cabinet:  The  autocratic  type.     The  English  type.    The 

American  type 153 

Divisions  of  Administration:  Separation  of  church  and 
state.  Separation  of  the  judicial  department.  Separation 
of  a  lawmaking  department.  Separation  of  an  electorate. 
The  administrative  system.  Coordination  of  administra- 
tive divisions.  The  civil  service.  Office-holders.  Tenure 
of  office.     The  right  of  recall 156 

Administrative   Districts:    The   three   grades.     Home   rule 

or  centralization 164 

CHAPTER   VIII 

THE   JUDICIAL   DEPARTMENT 

The  Judicial  Function.  Executive  judicial  power.  Admin- 
istrative courts.  French  administrative  courts.  French 
administrative  law.  American  parallels.  Judicial  power 
in  the  lawmaking  body 168 

Development  of  the  Judicial  Department:  Specialization 
of  judicial  business.  Independence  of  the  judiciary. 
Privileged  classes.  Systems  of  courts.  The  system  of 
equity.  Specialized  jurisdiction.  The  judicial  system  as 
a  whole 175 

Legal  Penalties:  Forms  of  punishment.  The  four  stages 
of  punishment.  The  use  of  torture  and  the  ordeal. 
Modern  penal  systems 182 


CONTENTS  9 

CHAPTER  IX 
THE  LAWMAKING  DEPARTMENT 
Rise  of  a  Lawmaking  Body.  The  English  parhament.  Im- 
portance of  a  lawmaking  body.  The  bicameral  system. 
Composition  of  the  lawmaking  body.  Initiation  of  bills. 
Privileges  of  legislatures  and  legislators.  Rules  of  proced- 
ure. The  committee  system.  The  veto  power.  For- 
mulation of  legislative  policy.  The  American  system. 
Powers  of  the  popular  assembly.  Changes  through  the 
struggle  of  interests.     Functions  of  legislative  bodies      .     188 

CHAPTER   X 
THE   LEGAL   SOVEREIGN   AND   THE   ELECTORATE 

The  Legal  Sovereign:  A  constitution  implied  in  the  organiza- 
tion of  every  state.  The  constitution  as  representative 
of  dominant  interests.  The  legal  sovereign.  Location 
of  legal  sovereigntj'.  The  legal  sovereign  in  origin  some- 
times revolutionary.     The  constitutional  convention       .     207 

The  Electorate:  Its  development.  Definition.  The  suffrage. 
The  electorate  a  governmental  agency.  Restrictions  on 
the  powers  of  electorates.     Methods  of  voting    .        .        .     215 

A  Newer  Democracy:  Historical  development  of  the  modern 
initiative  and  referendum.  The  representative  system. 
Swiss  direct  democracy.  Direct  democracy  in  the  United 
States.  New  Zealand's  political  laboratory.  The  con- 
tributions of  nations  to  political  civilization.  Law  and 
citizenship 220 


^art  four 


CHAPTER   XI 
CLASSIFICATION   OF    LAW 

The  Meaning  of  Law.  The  multiplication  of  law.  The  law  of 
treason.  Criminal  and  civil  law.  The  ordinance.  Ad- 
ministrative law.  Constitutional  law.  The  statute. 
Equity  law.  Canon  law.  Internationallaw.  Public  and 
private  law.     Codification 237 


10  CONTENTS 

CHAPTER  XII 
LAWMAKING   OR   LEGISLATION 

The  Growth  of  Law:  Unchanging  law.  Change  through  con- 
quest. Change  through  interpretation.  The  influence  of 
commentators.  The  influence  of  codifications.  Codifica- 
tion a  sort  of  legislation.  Lawmaking  through  the  execu- 
tive. Lawmaking  through  ancient  assemblies.  Modem 
legislation.  The  making  of  new  law.  Scientific  legislation. 
Legality  of  legislation 252 

The  Written  Constitution:  Its  origin.  As  a  check  on  despot- 
ism. Its  growing  importance.  Amendments.  Its  devel- 
opment in  the  United  States.     The  convention   .       .       .     264 

CHAPTER  XIII 
RIGHTS   AND   POLITICAL  PARTIES 

Rights  Under  the  State:  Origin  of  rights.     The  fundamental 

right.     How  rights  are  safeguarded 274 

Political  Parties:  The  party  system.  The  basis  of  success. 
Origin  of  parties.  The  three  types  of  party  organization. 
Governmental  regulation.     Party  issues       ....     278 

CHAPTER  XIV 

CITIZENSHIP 

Citizens  and  Aliens.     Classes  of  citizens 287 

The  Rights  of  Citizenship:   Ethical  and  legal  rights.     Civil 

rights.    General  welfare  and  happiness.     Historical  rights. 

Limitations  on  rights.     Political  rights 289 

The  Duties  of  Citizenship:   Allegiance.     Service.     Taxation. 

Importance  of  taxation 296 

CHAPTER   XV 
MODERN   DEMOCRACY 

Its  Development :  The  people.  The  ideal  of  democracy.  Tribal 
democracy.  Commercial  democracy.  Popular  democracy. 
The  equality  of  man.  Forms  of  democracy.  Modem 
radical  experiments 300 

The  Trend  of  Democracy:  Modem  democratic  influences. 
Democracy  dependent  on  education.  Democracy  and 
international  policies.  Democracy  and  the  larger  interests 
of  humanity 309 


PART  ONE 
SOCIAL  AND   POLITICAL  DEVELOPMENT 


CHAPTER  I 

SOCIAL  DEVELOPMENT 

The  progress  of  mankind  has  been  made  possible 
through  a  continuous  development  of  social  institutions. 
Primitive  human  beings,  banding  themselves 
fns*titutions  together  into  natural  groups,  began  slowly  to 
rise  above  the  harsh  conditions  of  mere  animal 
existence,  as  they  attained  through  the  struggle  for  sur- 
vival greater  mental  capacity  and  the  power  to  satisfy 
their  increasing  needs.  During  the  course  of  this  social 
development  men  have  from  the  beginning  formed  aggre- 
gations and  associations  for  purposes  of  social  utility, 
and  in  these  associations  arise  innumerable  social  rela- 
tionships, by  the  aid  of  which  all  men  may  find  their 
truest  and  best  life.  Every  man  is  born  into  such  rela- 
tionships; his  training  and  character  depend  largely  on 
his  associates,  and  his  attainment  and  success  in  life  are 
determined  chiefly  by  the  social  influences  and  institu- 
tions that  environ  him. 

Social  institutions  unitedly  form  the  social  order,  or 
organization.  Through  them  are  conserved  the  contri- 
butions of  bygone  ages  to  civilization,  and  without  them 
social  life  would  lack  unity  and  stability.  Primarily 
these  institutions  were  developed  either  for  the  purpose 
of  training  or  instruction,  as,  for  instance,  the  institu- 
tions of  the  family,  the  church  and  the  school;   or  for 

13 


14      THE  DEVELOPMENT  OF  THE  STATE 

the  purpose  of  securing  food  supplies  and  other  physical 
necessities — our  economic  institutions;  or  in  order  to 
safeguard  and  strengthen  the  entire  social  life  of  society. 
The  institution  developed  for  this  purpose  is  the  state, 
the  dominant  social  institution  of  the  day. 

Though  it  is  customary  to  study  these  several  institu- 
tions separately,  yet  social  life  must  be  considered  as  a 
unit,  since  every  important  modification  in  social  life 
affects  all  aspects  of  that  life,  its  several  phases  are  parts 
of  a  common  experience,  and  the  same  conditions  and 
causes  in  varying  degree  affect  alike  all  social  institu- 
tions. In  this  century,  therefore,  when  fundamental 
changes  are  taking  place  in  social  organization,  a  knowl- 
edge of  the  development  of  civilization  as  a  whole  be- 
comes important.  This  study  is  one  of  the  branches  of 
sociology,  and  is  an  attractive  department  of  modern 
knowledge.  In  order,  therefore,  to  see  the  relative  place 
and  importance  of  the  state  in  social  life,  it  may  be  well 
to  indicate  briefly  the  broad  periods  of  civilization 
through  which  society  has  passed. 

The  Growth  of  Civilization 

Civilization  has  been  defined  in  many  different  ways, 
but  practically  all  definitions  are  based  on  certain  funda- 
mental ideas:  (1)  that  man  attains  civilization 
Meaning  of  ^^  j^^  mastcrs  and  utilizes  the  materials  and 

civilization. 

forces  of  nature  about  him;  (2)  that  in  achiev- 
ing this  mastery  he  develops  large  brain  capacity;  and 
(3)  that  this  greater  mentality  is  best  seen  in  the  higher 
faculties  of  the  mind,  such  as  the  powers  of  generaliza- 
tion, abstract  reasoning  and   creative  imagination.     A 


SOCIAL   DEVELOPMENT  15 

highly  civihzed  race,  therefore,  should  have  a  great 
measure  of  control  over  natural  conditions,  high  men- 
tality, idealism  and  philosophic  insight.  A  race  low  in 
civilization  would  on  the  other  hand  be  not  far  removed 
in  attainment  and  mentality  from  the  higher  forms  of 
animal  life. 

In  tracing  the  development  of  civilization  it  is  usual 

to  divide  its  earlier  period  into  stages,  each  characterized 

by  some  particular  social  attainment,  either 

itsearUer     material  or  intellectual.     Attention  may,  for 

stages.  ''  ' 

instance,  be  directed  to  the  substance  used  in 
the  making  of  tools.  The  earliest  human  beings  who 
became  "tool-using  animals"  presumably  used  sticks 
and  roots  or  branches  of  trees  as  primitive  hammers  and 
weapons.  At  a  later  period  pieces  of  heavy  stone  were 
fastened  to  wood  either  by  thongs  or  by  insertion. 
Still  later  these  stones  were  polished  so  as  to  give  a 
better  cutting  edge  and  a  more  ornamental  appearance. 
Then  came  the  age  of  bronze  or  copper,  in  which  were 
used  soft  metals  that  could  be  beaten  into  shape  while  in 
their  natural  state.  In  the  last  stages  of  early  civiliza- 
tion, when  the  use  of  fire  was  understood,  hard  metals, 
such  as  iron,  came  into  use  through  smelting,  and  civili- 
zation was  then  ready  for  the  massive  machinery  of 
modern  times,  whose  introduction  depended  on  scientific 
knowledge  as  to  the  utilization  of  the  powers  of  steam 
and  electricity.  Other  writers  prefer  to  trace  civiliza- 
tion by  noting  the  chief  sources  of  food  supplies  for 
human  beings.  At  first  natural  foods  which  could  be 
obtained  by  man  without  tools  or  weapons  were  con- 
sumed.   Then  came,   in  addition,  food  supplies  from 


16  THE   DEVELOPMENT   OF   THE   STATE 

hunting  and  fishing.  Still  later,  through  the  domestica- 
tion of  animals,  came  permanent  supplies  of  flesh  foods, 
and  then  agriculture  made  its  important  contribution 
toward  the  sustentation  of  the  human  race.  Others 
emphasize  the  development  of  the  chief  forms_joLoccu- 
pation,  such  as  the  wild  and  precarious  life  of  the  hunter, 
the  care  of  flocks  and  herds,  the  pursuit  of  agriculture, 
and  finally  the  occupations  involved  in  the  trades,  in 
commerce,  manufacturing  and  professional  pursuits. 
Others  fix  their  attention  on  the  evolution  of  the  notion 
of  property  in  land  and  personal  possessions  and  discuss 
three  stages:  (1)  that  in  which  the  notion  of  the  owner- 
ship of  land  and  other  forms  of  property  was  unknown, 
(2)  that  in  which  land  and  other  property  i  were 
considered  as  held  or  owned  by  the  community  as  a 
whole,  and  (3)  that  in  which  land  and  other  property 
are  considered  to  be  the  personal  possessions  of  in- 
di^dduals. 

Still  other  writers  prefer  to  trace  civilization  through 
the  varying  forms  of  the  family  and  indicate  a  threefold 
civiUzation  development:  (1)  a  matriarchal  ^  stage,  char- 
traced  acterized  fundamentally  by  kinship  traced 
certain  through  the  mother,  and  the  absence  of  per- 
institutions.  niaucucy  in  family  life;  (2)  a  patriarchal  stage 
in  which  kinship  is  traced  through  the  male,  and  the 
power  of  the  paternal  head  of  the  family  tends  to  be- 
come absolute;  (3)  the  modern  stage  in  which  kinship  is 
traced  through  both  parents  and  emphasis  is  placed  on 

'  Except  such  personal  possessions  as  weapons,  tools,  ornaments 
and  clothing. 

^  Metronymic  is  the  better  term,  but  the  other  is  more  familiar 
by  usage. 


SOCIAL   DEVELOPMENT  17 

a  permanent  marriage  relationship  between  one  man  and 
one  woman.  Other  writers  would  trace  civilization  by 
a  study  of  the  development  of  religion  through  its  his- 
toric stages,  such  as  animism,  ancestor  and  nature  wor- 
ship, polytheism,  pantheism  and  monotheism.  Others 
may  trace  it  in  the  several  stages  of  morality,  starting 
from  primitive  notions  of  utility  and  its  opposite,  as 
shown  in  the  customs  of  savages,  and  leading  on  to 
theories  of  abstract  morality  such  as  those  taught  by 
philosophers  and  theologians.  Still  others  prefer  to 
emphasize  the  attitude  of  men's  minds  tftward  explana- 
tions of  the  mysteries  of  the  universe  in  terms  of  natural 
causation;  or  toward  authority,  by  calling  attention  to 
the  individualistic  attitude  of  mind  among  developed 
peoples  as  contrasted  with  the  passivity  and  conserva- 
tism of  backward  races. 

It  is  hardly  necessary  to  enumerate  other  explana- 
tions of  development  set  forth  by  sociological  writers. 
The  very  fact  that  the  progress  of  civilization 
progress  of  cau  be  indicated  under  so  many  aspects  shows 
civilization.  ^-^^^  thcsc  are  but  specialized  phases  of  one 
great  movement  of  a  unified  social  life,  manifesting  itself 
under  many  different  forms,  but  all  alike  teaching  that 
mankind  is  rising  from  primitive  savagery  to  higher  and 
more  ethical,  more  intellectual  stages  of  development. 
Evidently,  therefore,  even  the  most  advanced  peoples 
have  not  yet  attained  the  highest  possible  development. 
Even  the  best  of  them  are  low  and  savage  when  com- 
pared with  the  ideals  of  social  perfection  taught  by  the 
noblest  representatives  of  humanity  in  ages  past  and 
present.     Further   development   is   still   possible,    and 


18  THE   DEVELOPMENT   OF  THE  STATE 

every  wise  utilization  of  the  materials  and  forces  of  na- 
ture and  every  upward  step  in  intellectual  and  moral 
attainment  will  aid  in  the  furtherance  of  social  progress. 

Conditions  that  Affect  Social  Development 

It  is  evident  from  the  foregoing  survey  that  physical 
and  psychical  conditions  may  largely  affect  the  develop- 
The  three  mcut  of  social  institutions,  and  so  important 
mental  ^^  ^^^^  influence  that  for  the  student  of  politics 
conditions,  further  explanation  becomes  necessary.  At- 
tention should  in  the  first  place  be  directed  to  the  in- 
fluence exerted  on  political  development  by  the  climate, 
by  the  fertility  and  mineral  wealth  of  the  soil  and  by 
the  contour  and  configuration  of  the  land  with  its  sea- 
coasts,  harbors,  rivers  and  lakes,  so  necessary  for  the 
promotion  of  domestic  and  foreign  commerce.  Con- 
sideration should  then  be  given  to  the  population,  noting 
its  numbers,  virility  and  physical  stamina.  In  the 
third  place  should  be  studied  the  qualities  of  the  mind, 
such  as  keenness  of  insight  and  the  powers  of  mental 
endurance  and  adaptability.  A  flexible  type  of  mind, 
able  to  balance  the  old  and  the  new,  and  to  decide 
wisely  under  changing  conditions,  is  a  factor  of  prime 
importance  in  political  development.  Such  conditions 
as  these  will  of  course  manifest  themselves  in  the  kind 
and  extent  of  education  imparted  in  any  given  com- 
munity, in  its  customs  and  in  the  strength  of  its  social 
institutions.  They  will  be  indicated  also  in  the  political 
and  economic  capacity  of  the  people  and  in  the  feeling 
of  political  unity  that  must  necessarily  be  manifested, 
if  a  state  is  to  make  the  progress  demanded  by  its  oppor- 


SOCIAL   DEVELOPMENT  19 

tunities.     The  chief  points  under  these  three  topics  may 
now  briefly  be  indicated. 

I.  Communal  life,  which  is  essential  for  political 
growth,  develops  only  when  abundant  food  supplies 
Necessity  of  attract  masscs  of  population.  Communities, 
abundant      therefore,  first  developed  in  fertile  river  valleys, 

food  sui>-  .  n.ii-  •   -I 

plies  and  HI  wcll- Watered  plams  with  warm  and  equa- 
metais.  j^jg  climato,  whcrc  game  was  plentiful,  pas- 
turage possible  and  agriculture  easily  productive. 
These  natural  advantages,  however,  are  not  sufficient. 
There  are  other  needs  besides  that  of  food.  Even  in 
the  formative  or  primitive  stage  there  was  a  demand 
for  hard  woods,  flint  and  jade,  colored  earths,  clay, 
fibrous  plants  and  primitive  luxuries.  Locations  fur- 
nishing such  supplies  were  eagerly  sought  out,  and  the 
possessors  of  the  land  developed  a  rude  system  of  barter 
with  hordes  less  richly  supplied.  As  civilization  ad- 
vanced, metals  came  to  be  necessities,  and  mines  were 
sought  for  in  all  directions.  Explorers  and  traders 
established  centers  of  commerce  wherever  mines  were 
found.  Great  city  states  and  empires  rose  one  after  the 
other,  rising  as  they  became  the  centers  of  trade  between 
wealthy  and  populous  regions,  and  falling  as  other  and 
better  regions  were  discovered  or  shorter  and  safer 
routes  were  developed.  In  this  way  rose  and  fell  the 
empires  of  the  East  and  the  later  civilization  of  Persia, 
Greece  and  Rome,  as  the.  mining  wealth  of  India,  Arabia 
and  Africa,  Asia  Minor,  Southeast  Europe  and  the  out- 
lying countries  fringing  the  Mediterranean  was  discov- 
ered and  utilized. 

The  domestication  of  animals  and  the  utility  of  some 


20  THE  DEVELOPMENT  OF  THE.  STATE 

of  them  as  beasts  of  burden  developed  the  caravan  and 

the  long  overland  routes  of  Asia.     Water  transportation 

along  the  dangerous  shores  of   southern  and 

Expansion  °  , 

through  southwestern  Asia  lagged  far  behind,  but  when 
commerce.  (.iyjji2ation  reached  the  eastern  shores  of  the 
Mediterranean,  Phoenicia,  the  first  Mistress  of  the  Seas, 
pushed  westward  as  far  as  the  Atlantic  seeking  metals, 
establishing  colonies,  and  carrying  with  her  the  flourish- 
ing civilization  of  the  East.  After  the  Phoenicians  came 
the  Greeks,  born  colonists  and  keen  traders,  who,  build- 
ing on  the  contributions  of  ancient  civilization,  with 
versatile  mind  continually  sought  after  "some  new 
thing"  1  and  thereby  developed  the  highest  type  of 
ancient  civilization.  After  them  came  an  empire  of  ex- 
ploitation, a  nation  with  a  developed  capacity  for  war, 
administration,  order  and  law,  which  conquered  and 
absorbed  one  after  the  other  ancient  civilizations  and 
barbarian  tribes,  bringing  all  under  the  common  yoke  of 
Rome.  But  it  was  a  nation  lacking  imagination,  unin- 
ventive  and  ultraconservative ;  it  failed  through  lack 
of  adaptability;  it  lacked  the  scientific  attitude  of  mind; 
it  knew  in  economics  only  exploitations  and  devasta- 
tion; and  with  all  its  political  experience  and  its  capacity 
for  law  and  administration,  it  ifailed  to  establish  the 
state  on  sound  economic  foundations.  The  collapse  of 
the  western  Roman  empire  drove  civilization  back  to 
the  East  and  to  the  South,  where  it  flourished  for  nearly 
a  thousand  years  longer,  at  Constantinople,  and  in 
Persia  and  northern  Africa.  Western  Europe  barely 
held  its  own  for  five  hundred  years,  but  then  came  in 
'  Acts  xvii,  21. 


bOCIAL   DEVELOPMENT  21 

the  tenth  century  the  discovery  of  metals  in  the  Harz 
Mountains,  the  rise  of  German  and  Itahan  cities  and  the 
crusades.^  These  greatly  aided  European  civilization 
by  the  destruction  of  many  turbulent  robber  barons, 
the  redevelopment  of  conunerce  with  the  East  and  the 
consequent  inflow  of  the  intellectual  attainment  and 
culture  of  Greek  and  Saracen  civilizations.  The  use  of 
the  compass  opened  new  routes  to  the  East  and  rendered 
possible  the  discovery  of  America.  This  discovery  made 
western  Europe,  for  the  mineral  wealth  of  Mexico  and 
South  America  poured  into  its  cities,  and  the  great  ex- 
pansive movement  westward  in  commerce  and  coloniza- 
tion gave  new  vigor  and  energy  to  its  seafaring  nations. 

^^Tien  the  era  of  steam  began  in  the  eighteenth  cen- 
tur}^,  first  the  demand  for  cotton  and  cotton  goods,  and 
Expansion  thcu  for  modcm  machinery,  gave  England 
through  ^j^^  ^Yie  United  States  of  America  their  oppor- 
factures.  tunity,  through  their  possession  of  immense 
beds  of  coal  and  iron.  To-day  the  competing  nations 
are  searching  the  world  for  accessible  stores  of  metal 
ores,  fuels,  oils,  building  stone,  forests  and  fertile  plains 
suited  for  grazing  and  agriculture.  These  are  first  and 
necessary  conditions  of  a  nation's  material  prosperity. 
Then  if  other  factors  be  present,  such  as  facilities  in 
transportation,  skilled  and  unskilled  labor,  open  mar- 
kets and  an  energetic  population,  a  basis  exists  on  which 
may  be  built  up  a  great  and  mighty  civilization. 

II.  In  considering  the  effect  of  population  upon  politi- 
cal development,  several  points  must  be  taken  into  con- 

*  Note  in  this  connection  Brooks  Adams,  '.'  The  Law  of  Civiliza- 
tion and  Decay." 


22      THE  DEVELOPMENT  OF  THE  STATE 

sideration.     (1)  It  is  obvious  that,  other  things  being 
equal,  the  numerical  greatness  of  a  people  is  a  distinct 

advantage  in  competition,  whether  in  war  or 
question  of  for  economic  supremacy.  The  chief  factor  in 
popu  ation.  (jg^g2'mining  the  number  of  a  population  is  the 
food  supply.  Among  savage  peoples,  when  population 
presses  too  closely  on  food  supplies,  the  weakest  are 
regularly  put  to  death  and  perhaps  consumed  as  food. 
From  this  necessity  probably  arose  the  customs  of  in- 
fanticide and  the  slaying  or  exposing  of  the  aged  or  in- 
firm. The  custom  of  infanticide  was  practised  also  by 
patriarchal  peoples,  as,  for  example,  among  the  ancient 
Greeks  and  Romans,  and  to-day  in  China.  Population 
is  also  reduced  by  the  excessively  high  rate  of  infant 
mortality  among  uncivilized  and  semi-civilized  peoples, 
and  by  wars,  famines  and  pestilences. 

Among  civilized  communities  the  standard  of  living 
plays  an  important  part  in  determining  the  increase  of 

pop^il^t^o^-  The  demands  of  social  life  are  so 
standard  of  numcrous  and  expensive  that  the  higher  social 
^'"^"  classes  tend  to  restrict  the  number  of  their  off- 
spring either  by  natural  or  unnatural  means.  The  wis- 
dom of  "this  "race  suicide"  is  open  to  question  from  the 
standpoint  of  social  and  national  development,  but  the 
entire  matter  is  debatable.  (2)  A  dense  population  is 
not  really  an  advantage  to  a  state  unless  the  masses  of 
the  people  have  a  sufficient  and  varied  food  supply,  so 
as  to  develop  strong  physiques  able  to  endure  hardship 
and  to  resist  disease.  Under  such  conditions,  at  least 
in  a  competitive  age,  there  develop  in  men  masterful, 
manly  and  aggressive  qualities  of  mind.     If  population 


SOCIAL   DEVELOPMENT  23 

presses  too  closely  on  food  supplies,  the  people,  poorly 
fed,  become  physically  inert,  passive,  sickly  and  lack 
mental  energy.  Such  persons,  compelled  to  live  from 
hand  to  mouth,  become  improvident,  lack  ambition  and 
the  higher  qualities  of  the  mind,  and  remain  low  in 
civilization  and  character,  even  though  the  wealthier 
classes  of  the  community  are  comparatively  high-  in 
civilization.  This  evil  is  seen  at  its  worst  in  the  tropics 
where  the  per  capita  amount  of  necessities  is  so  small, 
and  the  fertility  of  the  soil  so  great,  that  the  land  fairly 
swarms  with  millions  who  barely  exist  in  times  of  plenty 
and  who  die  by  the  thousand  in  times  of  famine  and 
pestilence  through  lack  of  physical  vitality  and  through 
mental  inertness.^ 

The  virility  of  a  population  also  depends  to  some  ex- 
tent on  the  stimulus  of  economic  opportunity  and  of  the 
The  intellectual   and   social   environment.     Under 

!!.'I!^!i!!L°^    favorable  conditions  human  beings  easily  be- 

economic  <->  •^ 

opportunity,  comc  cconomically  versatile,  but,  when  nar- 
rowed by  the  dreariness  of  a  monotonous  life  and 
occupation,  they  lose  ambition.  On  the  other  hand, 
a  mind  well  trained  by  proper  education  and  stimulating 
social  influences,  reacts  on  the  body  and  quickens  its 
activities.  Freedom  from  anxiety  also,  due  to  the  knowl- 
edge of  the  safeguards  of  well-enforced  law,  is  a  power- 
ful stimulant  to  physical  energy  along  economic  lines. 
When  such  conditions  are  favorable,  there  readily  de- 
velops an  energetic  and  aggressive  spirit  that  brings  to 
the  front  the  explorers,  merchants,  inventors  and  thinkers 

'  In  respect  to  this  subject  note  in  Bibliography  works  by  R. 
Russell. 


24      THE  DEVELOPMENT  OF  THE  STATE 

of  the  age.  No  one,  to  be  sure,  should  assert  that  an 
inert  peon,  by  increase  and  variation  in  diet,  would  at 
once  become  an  aggressive  American:  but,  undoubtedly, 
several  generations  of  the  sustenance  and  training  which 
Anglo-Saxons  have  had,  would  make  the  descendants  of 
that  peon  much  more  forceful  persons  than  their  ances- 
tor. Caesar  had  a  rather  ])oor  opinion  of  the  fighting  and 
staying  capacity  of  our  Germanic  forefathers,  but  un- 
questionably an  American  Rough  Rider  regiment  would 
have  a  similar  opinion  of  Caesar's  legions,  if  they  should 
ever  meet  in  combat  on  the  Elysian  fields. 

III.  Brain  capacity  and  mental  character  are  most 
important  considerations  in  estimating  the  worth  of  a 
The  population.     A  savage,  like  an  animal,  has  no 

mentality      couccntration  of  mind  and  lacks  imagination. 

a  peop  e.  -^^  -^  savage  in  disposition  only  when  ill  fed  or 
ill  treated.  Otherwise  he  is  peaceable,  good-natured 
and  indolent.  Patriarchal  life,  holding  as  it  did  the  mass 
of  its  population  at  hard  labor,  developed  in  them  pa- 
tient endui'ance  and  tireless  industry,  but  no  high  men- 
tality. That  developed  in  the  elders  and  masters,  who, 
having  much  leisure,  besides  domineering,  aggressive 
qualities,  developed  also  mental  acumen  and  philo- 
sophical insight,  always  characteristic  of  the  higher 
classes  of  patriarchal  systems.  Commercial  life  de- 
mands aggressiveness,  ingenuity,  mental  alertness  and 
ruthlessness  in  stamping  out  opposition.  An  age  of 
production  through  machinery  demands  scientific  in- 
sight, executive  capacit}''  and  ability  to  master  details. 
In  the  type  of  the  dominant  peoples  of  western  civiliza- 
tion we  find  a  composite  of  these  qualities.    Civilized 


SOCIAL   DEVELOPMENT  25 

man  is  regularly  ruthless  and  merciless  to  an  opponent, 
but  is  kindly  and  sympathetic  when  opposition  has 
ceased.  He  is  guided  by  ideals  when  material  interests 
are  not  involved,  but  is  selfish  and  covetous  at  the  pos- 
sibility of  gain.  He  is  masterful  in  dealings  with  in- 
feriors, resourceful  when  necessity  arises,  ca])al)le  of  pa- 
tient toil  and  hardship,  yet  is  fond  of  ease  and  relaxation. 
Energetic,  keen-minded,  inventive  and  idealistic,  he 
combines  in  himself  the  best  and  the  worst  of  humanity. 
He  is  a  savage  becoming  a  god,  and  has  shown  great 
natural  capacity  in  both  directions. 

SPECIAL  REFERENCES 

Development  of  Social  Life :  General  works  on  sociology,  such  as 
those  by  Giddings,  Mackenzie,  Small,  Spencer,  Stuck- 
ENBERG,  and  Ward  ;  Maine,  "  Early  History  of  Institutions." 
On  lirimitive  and  early  civilizations:  "The  Temple  Cyclo- 
paedic Primers";  De  Nadaillac,  "Manners  and  Customs  of 
Prehistoric  Peoples  "  (translated  by  Nancy  Bell),  1894. 

Industrial  Development:  Bourne,  Bucher,  Ely,  Mason, 
Wallace;  Ward  ,  "Pure  Sociology,"  Chap.  xix.  On  eco- 
nomic and  geographic  conditions:  Cyrus  C.  Adams,  "Text- 
book of  Commercial  Geography,"  Chaps,  i-vi.  On  future 
possibiHties :  Morison;  Shaler,  "Man  and  the  Earth." 

Population:  Malthus,  Nitti,  Stangeland,  Ussher;  AmeiHcan 
Juunial  of  Sociology,  vol.  ii,  July,  1896,  Albion  W.  Tour- 
gee,  "  The  Reversal  of  Malthus";  Yale  Review,  vol.  iii, 
p.  166,  Richmond  Mayo-Smith,  "Theories  of  Mixture  of 
Races  and  Nationalities";  vol.  vii,  p.  153,  Frank  A.  Fetter, 
"  The  Essay  of  Malthus,"  A  Centennial  Review;  Political 
Science  Quarterly,  vol.  x,  p.  44,  S.  N.  Patten,  "  The  Law 
of  Population  Restated." 

Mental  Development:  Buckle,  Crozier,  Kidd,  Mackenzie; 
Ward,  "Applied  Sociology." 


CHAPTER  II 

STAGES   IN   THE  DEVELOPMENT   OF  THE   STATE 

With  this  outline  of  the  development  of  civilization 
as  a  background,  it  will  now  be  possible  to  consider  at 

more  length  the  several  stages  in  the  develop- 
w  stages.  "^6^t  of  the  state.    These  stages,  it  will  be 

found,  are  closely  associated  with  the  condi- 
tions of  economic  life,  and  for  that  reason  economic 
periods  of  development  will  form  the  best  basis  for  an 
historical  study  of  the  state.  The  periods  chosen  may 
briefly  be  indicated  as  follows: 

I.  The  formative  or  primitive  period,  based  on  the 
occupations  of  hunting  and  fishing,  and  lasting  to  the 
development  of  a  pastoral  and  agricultural  mode  of  ex- 
istence; 

II.  The  period  of  settled  social  institutions  character- 
ized by  the  definite  occupations  of  grazing  and  farming, 
and  by  the  growth  of  property  rights; 

III.  The  period  of  urban  civilization,  developed 
through  the  growth  of  commerce  and  international 
trade;  and 

IV.  The  period  of  industrial  civilization  emphasizing 
production  through  the  utilization  of  the  materials  and 
forces  of  nature. 

In  these  last  two  stages  the  specialized  occupations 
incident  to  commerce  and  manufactures  supplement  the 

26 


STAGES  IN   DEVELOPMENT   OF  THE   STATE        27 

fundamental  occupations  of  the  earlier  periods.  The 
first  period,  often  referred  to  as  the  primitive  age,  or  the 
age  of  savagery,  emphasized  natural  foods,  the  occupa- 
tions of  hunting  and  fishing  and  the  use  of  stone  imple- 
ments. The  second  period,  the  age  of  fixed,  static  or 
patriarchal  civilization,  made  use  of  flesh  foods  and 
grains,  obtained  through  the  occupations  of  pastoral 
and  agricultural  life,  and  made  use  of  soft  metals  and, 
to  some  extent,  of  iron.  The  third  period,  the  age  of 
commerce  and  urban  civilization,  added  to  former  occu- 
pations those  involved  in  transportation  and  interna- 
tfonal  trade,  making  also  a  large  use  of  iron,  and  gaining 
food  to  some  extent  by  exchange  of  goods  for  needed 
supplies.  The  fourth  period,  characterized  by  a  com- 
plex and  centralized  social  organization,  emphasizes  in- 
dustrial occupations  and  abundant  productivity  through 
the  utilization  of  the  materials  and  forces  of  nature  by 
means  of  machinery.  Each  later  period  includes  what 
has  gone  before,  but  with  diminishing  emphasis.  Hunt- 
ing, for  example,  becomes  a  diversion  more  than  an  oc- 
cupation, and  foods  from  the  soil  are  substituted  for 
flesh  as  the  "staff  of  life." 

It  must  not  be  supposed  that  these  periods  are  syn- 
chronous for  all  mankind.  They  represent  grades  of  de- 
velopment and  apply  to  racial  and  national  groups  of 
men,  not  to  mankind  as  a  whole.  The  larger  half  of 
humanity  ^  is  still  in  one  or  the  other  of  the  first  two 
periods,  chiefly  in  the  second;  some  nations  after  passing 
into  the  third  period  have  sunk  back  into  the  second;  ^ 

'  China,  India  and  most  of  Russia,  for  example. 
^  Asia  Minor  illustrates  this  change. 


28  THE   DEVELOPMENT   OF   THE   STATE 

the  last  period  applies  only  to  a  numerically  small  part 
of  humanity  made  up  of  the  most  advanced  modern 
nations, 

I.  The  Primitive  Period 

In  earlier  primitive  times  human  beings  must  have 

been  little  removed  from  the  conditions  of  the  beasts 

about  them.     They  had  no  tools,  no  perma- 

The  age  of    ^qj^^  marriage  ties,  few  or  no  religious  beliefs, 

beginnings.  o  7  o  7 

nothing  worthy  of  the  name  of  state,  and  sub- 
sisted, like  animals,  on  what  natm'e  spontaneously  pro- 
duced. In  later  primitive  times,  some  knowledge  of 
which  is  fairly  well  supplied  from  a  study  of  relics  and 
fossil  implements,  and  from  observation  of  low  civiliza- 
tions still  existing,  men  had  become  far  superior  to  the 
members  of  the  animal  world.  They  knew  the  use  of 
fire,  and  had  devised  weapons,  industrial  and  household 
implements  and  the  canoe.  They  erected  rude  houses, 
and  made  use  of  clothing,  partly  for  protection  against 
the  inclemency  of  the  weather  but  chiefly  for  purposes 
of  ornamentation.  Personal  ornaments,  rude  drawings, 
idol  or  image-making,  and  the  monotonous  rhythm  of 
their  musical  implements,  dancing  and  singing,  all  tes- 
tified to  the  beginnings  of  esthetic  development.  The 
voice  had  been  trained  into  articulate  speech.  The  mys- 
teries of  religion  were  manifested  in  fetishistic  and  ani- 
mistic beliefs  under  the  guidance  of  the  conjm'er  and  the 
medicine  man.  The  natural  matriarchal  family  of  ear- 
lier times  was  still  the  dominating  type,  but  was  develop- 
ing tendencies  looking  toward  the  patriarchal  form. 
Personal  property  rights  can  hardly  be  said  to  have  de- 


'  STAGES  IN   DEVELOPMENT  OF  THE  STATE        20 

veloped,  except  that  weapons,  ornaments  and  clothes 
were  individual  possessions.  Ownership  in  land  was 
unknown,  except  that  each  savage  horde  had  hunting 
grounds  beyond  which  its  members  went  at  their  own 
peril.  Such  an  age  was  plainly  the  age  of  beginnings. 
Men  were  no  longer  beasts  but  neither  had  they  much 
civilization.  Evidently  in  such  a  low  stage  of  social  life 
little  should  be  expected  along  lines  of  political  develop- 
ment. Yet  the  germs  of  practically  all  we  have  to-day 
may  be  traced  back  to  those  early  tirftes.  The  nation 
was  represented  by  the  horde/  a  loosely  organized  mass 
of  human  beings  not  necessarily  closely  akin,  but  yet 
bound  by  ties  of  common  descent,  customs  and  language. 
The  horde  was  not  a  permanent  organization  by  any 
means,  yet  it  held  together  for  purposes  of  food-getting, 
offense  and  defense,  and  for  social  or  convivial  gatherings. 
Long-established  customs  tracing  their  descent  from 
time  immemorial,  and  prohibitions  in  the  form  of  tabus 
represented  early  law,  which  was  enforced  by 
Theembry-  p^]-)li(3  opinion  uudcr  the  guidance  of  the  el- 

omc  state.       r  i  o 

derly  men  of  the  horde,  who,  as  persons  of  wide 
experience  and  larger  knowledge  of  traditions,  were 
deemed  wise.  Intercourse  between  hordes  was  regulated 
by  a  fairly  definite  mode  of  procedure,  the  germ  of  diplo- 
macy and  international  law.  Here  surely  seemed  to 
be  all  the  elements  necessary  for  the  existence  of  the 
state — authority,  law,  procedure  and  a  unity  organized 

'  There  is  much  diversity  in  respect  to  the  terminology  applied 
to  the  several  forms  of  early  human  groups.  To  avoid  confusion, 
therefore,  the  reader  should  carefully  observe  the  idea  conveyed  in 
this  text  by  the  words  horde,  tribe  and  clan,  and  should  remember 
that  the  same  groups  are  named  differently  by  different  writers. 


30  THE  DEVELOPMENT  OF  THE  STATE 

for  purposes  of  common  utility  and  protection.  Yet 
there  was  lacking  the  element  of  permanency,  perma- 
nency in  interests,  in  organization  and  in  purposes. 
For  as  long  as  a  community  depends  entirely  on  hunting 
and  fishing  for  a  precarious  subsistence,  nothing  really 
permanent  in  civilization  can  develop.  In  such  a  stage 
of  life  hordes  of  men  and  women  moved  about  from  place 
to  place  seeking  food  supplies.  When  food  was  abun- 
dant, the  pleasures  of  feasting  and  companionship  in- 
creased the  meiftbership  of  the  horde.  But  when  food 
became  scarce,  the  horde  lost  its  unity  since  its  members 
scattered  far  and  wide  so  as  to  maintain  life  more  easily. 
Under  such  conditions  there  could  be  no  permanent 
home,  no  opportunity  for  the  steady  development  of 
law,  order,  discipline  and  morality,  no  time  for  mental 
development  except  along  lines  of  cunning  competition 
with  hostile  beasts  and  savage  men.  Physical  instincts, 
derived  from  animal  ancestors,  modified  by  custom  and 
the  rule  of  force,  and  perpetuated  by  hard  experience 
were  the  chief  factors  in  life.  Continuity  of  purpose  and 
forethought  were  unknown.  Men  lived  from  hand  to 
mouth  in  a  desperate  struggle  for  existence,  and  by  no 
possibility  could  develop  a  state.  Yet  the  conditions 
were  present  that  at  a  later  stage  allowed  the  elements 
of  the  state  already  in  existence  to  develop  into  a  definite 
body  politic,  exercising  sovereign  authority  over  a  per- 
manently settled  community. 

II.   The  Period  of  Settled  Social  Institutions 

Several  factors  contributed  to  the  development  of 
higher   civilization   among  many   of    these    primitive 


STAGES  IN  DEVELOPMENT  OF  THE  STATE    31 

hordes.  The  needs  of  the  body  compelled  greater 
ingenuity  in  the  manufacture  of  hunting  weapons  as 
The  well  as  cunning  and  skill  in  the  use  of  them 

factors  in      agaiust  humau  enemies,  whose  flesh  in  those 

develop-  "  ' 

ment.  days  supplied  a  much-desired  variety  in  daily 

food.  Women  developed  patient  endurance,  medicinal 
knowledge  and  inventive  power,  as  they  plied  their 
tasks  of  rearing  the  young,  gathering  edible  vegeta- 
tion, preparing  food,  weaving,  house-building  and  orna- 
mentation of  all  sorts.  If  the  higher  mentality  of  a 
horde  met  its  reward  in  the  shape  of  more  abundant 
food  supplies,  improvement  in  the  physique  furnished 
the  conditions  for  the  possibility  of  a  still  higher  mental 
development.  Some  ingenious  community  at  last  hit 
on  the  happy  expedient  of  saving  alive  the  young  of 
wild  animals,  domesticating  them,  and  thus  by  the  ex- 
ercise of  a  little  foresight  and  self-denial,  it  was  enabled 
to  keep  food  supplies  on  hand  against  times  of  scarcity. 
This  discovery  of  human  supremacy  over  animals  sus- 
ceptible of  domestication,  gave  an  immense  impetus  to 
civilization.  Transient  hordes  became  firmly  compacted 
tribes  held  together  by  the  common  ownership  and  use 
of  plentiful  food  supplies  in  the  form  of  flocks  and  herds. 
The  vague  boundaries  of  hunting  grounds  became  definite 
areas  of  excellent  grazing  lands  fiercely  defended  against 
envious  aliens.  For  the  possession  of  flocks  and  herds 
meant  war  with  hungry  neighbors.  Hence  developed 
better  weapons,  wiser  leadership,  braver  men,  who  as 
shepherd-warriors  were  prepared  to  defend  their  wealth 
against  all  comers.  Such  an  aggressive  mode  of  life  de- 
veloped masterful  qualities  in  the  men;  women  were  rel- 


32  THE   DEVELOPMENT   OF   THE   STATE 

ogated  more  and  more  to  the  inner  life  of  the  group  and 
with  the  increase  of  domestic  responsibihties,  tended  to 
become  household  drudges.  The  abundance  of  flesh 
foods  gradually  banished  cannibalism,  especially  when 
it  was  perceived  that  the  enforced  labor  of  a  captured 
foe  was  of  more  utility  than  his  body  as  food.  Perma- 
nent food  supplies,  more  leisure  and  greater  mental 
capacity  gave  opportunity  for  meditation,  and  as  a  re- 
sult came  clearer  ideas  in  regard  to  the  supernatural. 
Crude  animistic  beliefs  changed  into  theories  of  nature 
and  hero  divinities,  preparing  the  way  for  later  systems 
of  nature  and  ancestor  worship.  The  possession  of  per- 
manent sources  of  wealth  brought  about  social  distinc- 
tions between  the  rich  and  the  poor,  the  master  and  the 
slave. 

Though  many  centuries  probably  elapsed  in  the  tran- 
sition from  the  old  to  the  new,  a  period  filled  with  curious 
blendings  of  primitive  and  patriarchal  civiliza- 
Eiementsof  i\q^  yg^  slowly  but  surcly  the  higher  civiliza- 

permanency.  '  -^  ''  "^  ^ 

tion  supplanted  the  lower.  In  place  of  the 
horde  came  the  tribe;  the  growing  importance  of  the 
male  was  marked  by  the  semi-slavery  of  the  women  and 
the  rise  of  the  patriarchal  family  in  place  of  the  matri- 
archal. Continuous  wars  brought  about  clear  notions 
of  leadership,  authority,  sul:)ordination,  law  and  social 
regulation.  A  more  permanent  communal  life  devel- 
oped mental  capacity,  social  institutions,  wiser  tradi- 
tions, greater  ingenuity  in  the  manufacture  of  tools, 
weapons  and  household  conveniences.  All  this  had  its 
influence  on  the  developing  state.  There  came  a  per- 
manent tribal  life,  definite  social  institutions,  clear-cut 


STAGES  IN    DEVELOPMENT   OF   THE   STATE        33 

notions  of  authority  and  law,  and  a  recognition  of  a  social 
welfare,  to  be  fought  for  and  strengthened,  even,  if  nec- 
essary, at  the  sacrifice  of  individualistic  well-being.  In 
such  conditions  are  to  be  found  all  the  essentials  of  a 
state,  not  so  well  defined  as  in  modern  times,  but  yet  a 
state  in  all  fundamental  features. 

The  patriarchal  period  attained  its  maturity  with  the 
development  of  agriculture.  No  one  knows  who  first 
planted  seed  in  the  ground  with  the  thought 
of  ultimately  reaping  its  product.  Possibly  the 
knowledge  of  seed-planting  may  have  existed  even  in 
early  primitive  times,  but  certainly  as  long  as  men  lived 
here  to-day  and  there  to-morrow  such  knowledge  was 
of  no  practical  use.  No  one  would  care  to  plant  seed 
that  another  would  almost  certainly  reap.  But  when 
communities  came  to  have  fairly  well-defined  boundaries 
within  which  they  might  roam,  and  when  in  the  pastoral 
period  a  diet  so  largely  of  flesh  demanded  some  variation, 
chance  experiments,  natural  appetite,  a  little  reflection 
and  forethought,  probably  all  contributed  to  the  devel- 
opment of  a  rude  system  of  agriculture,  merely  to  sup- 
plement the  food  supplies  furnished  by  flocks  and  herds. 

This  again  gave  a  great  impetus  to  civilization.  For 
as  population  increased  men  had  to  depend  more  and 
more  on  agriculture  for  food  supplies.  A  com- 
munity that  relies  chiefly  on  flocks  and  herds 
for  food  needs  much  more  land  than  one  that  depends 
chiefly  on  agriculture.  As  the  competition  for  fertile 
grazing  lands  became  keener  with  the  growth  of  popu- 
lation, a  community  must  either  fight  oftener  and  more 
vigorously  for  suflficient  land  or  else  be  satisfied  with 


34  THE   DEVELOPMENT   OF   THE   STATE 

what  it  had  and  get  food  by  farming.  Fighting  was 
probably  much  more  attractive  than  working,  but  for- 
tunately, perhaps,  another  alternative  presented  itself. 
The  institution  of  slavery  was  rapidly  developed.  Aliens 
captured  in  war,  weak  and  inferior  neighbors,  criminals 
and  debtors  of  the  tribe  were  deprived  of  liberty,  com- 
pelled to  do  the  drudgery  of  farm  labor  and  in  this  way 
secured  for  their  masters  edible  grains  easily  turned 
into  nutritious  food  by  the  labor  of  the  women.  Slav- , 
ery  in  modern  times  is  a  curse,  but  in  earlier  periods  was 
probably  the  principal  agency  whereby  humanity  passed 
from  pastoral  life  into  agricultural,  and  was  thus  the 
determining  factor  in  the  development  of  the  chief 
source  of  modern  food  supplies.  Selfish  interests  and 
experience  soon  added  improved  methods  of  farming  and 
when  tribes  came  to  depend  chiefly  on  the  products  of 
the  soil  for  sustenance,  the  pastoral  stage  of  human 
existence  had  passed  into  the  age  of  agriculture. 

Well-marked  effects  followed  this  important  change. 
The  tribe  definitely  broke  up  into  clans  composed  of 
Changes  members  closely  united  through  ties  of  kinship 
orgln^  ^^^  economic  interests.  The  character  of  these 
zation.  clans  as  they  settled  down  into  farming  village 
communities  became  strongly  patriarchal.  The  head- 
ship of  the  clan  was  vested  in  the  oldest  male  of  the 
leading  family  but  tended  to  pass  from  father  to  son. 
Religion  secured  a  powerful  hold  on  the  mind  by  em- 
phasis on  ancestral  worship.  The  family  became  per- 
manent and  definite,  but  included  a  wider  range  of  kin 
than  the  modern  family.  The  entire  clan  was  virtually 
one  great  family  looking  to  the  head  as  the  Patriarch 


STAGES   IN   DEVELOPMENT   OF   THE   STATE        35 

or  ruling  father  who  guided  and  protected  his  children. 
They  bore  a  common  name,  'had  a  common  system  of 
worship  and  cultivated  their  lands  and  pastured  their 
herds  in  common.  Their  disputes  were  settled  and  their 
affairs  regulated  by  the  heads  of  households  in  joint 
session  under  the  leadership  of  their  chief. 

In  this  system  each  village  community  was  itself  a 
petty  state  voicing  its  sovereignty  through    the   chief 

of  the  clan  who  was  assisted  in  his  deliberations 
communUy.  ^^Y  ^^^  oldcr  and  more  influential  men  under 

his  authority.  Such  a  community  by  inter- 
marriage became  closely  kindred  in  blood  and  in  social 
customs,  and  thus  developed  a  homogeneous,  autono- 
mous, self-centered  life  that  gave  wonderful  permanence 
to  that  form  of  organization.  To  this  day  the  larger 
part  of  humanity  live  in  agricultural  village  communities, 
practically  stationary  in  their  civilization  and  retaining 
customs  and  modes  of  thought  having  a  history  of  many 
centuries,  1  Through  such  communities  mankind  became 
trained  in  manual  labor,  endurance  of  toil,  reverence 
and  respect  for  law  and  authority,  tenacity  in  the  main- 
tenance of  civil  rights  and  veneration  for  the  super- 
natural. Without  such  training  civilization  could  never 
have  attained  stability,  nor  would  humanity  have  de- 
veloped the  homelier  virtues  and  domestic  tastes.  Its 
conservatism,  however,  so  necessary  in  a  static  civihza- 
tion,  becomes  weakness  in  times  of  transition  and  broader 
development.  If  unable  to  adapt  itself  to  newer  con- 
ditions such  a  community  readily  becomes  the  prey  of 

*  For  best  examples  of  such,  note  studies  of  the  village  life  of 
China,  India  and  Russia. 


36  THE   DEVELOPMENT   OF  THE   STATE 

stronger,  more  aggressive  communities  and  falls  into  a 
condition  of  subordination  and  servitude. 

The  several  village  communities,  which  had  once  been 
parts  of  an  original  tribe  or  primitive  horde,  naturally 
^^  ,  maintained  their  connection  one  with  another. 

The  loose 

confedera-  This  intcrcoursc  manifested  itself  in  joint  wor- 
ship at  stated  times,  marriage  alliances,  com- 
mercial dealings  and  joint  action  for  offense  and  defense 
in  times  of  war.  In  this  way  developed  loose  confedera- 
tions which  in  many  cases  became  more  strongly  unified 
through  peaceful  alliance  or  through  the  superiority  of 
a  powerful  community. i  From  such  confederations,  by 
constant  social  intercourse  and  intermarriage,  aided  by 
ties  of  kinship  and  religion,  there  might  easily  develop 
a  tribal  monarchy  like  that  among  the  Israelites  and  the 
Homeric  Greeks.  If  the  conditions  that  make  for  civil- 
ization were  favorable,  and  able  leaders  were  in  charge, 
such  tribal  monarchies  readily  passed  into  still  more  uni- 
fied kingdoms  and  empires,  not  strongly  centralized  as 
in  modern  times,  but  presenting  that  type  so  charac- 
teristic of  oriental  monarchies,  a  sort  of  confederation 
or  a  feudal  suzerainty,  a  unity  made  up  of  subordinate 
units,  practically  autonomous  in  local  affairs,  but  yet 
tributary  and  in  general  matters  under  regulations  or- 
dained by  the  sovereign  lord  or  king. 

In  such  communities  as  these,  whether  petty  village 
states  or  loosely  confederated  monarchies,  were  all  the 
necessary  elements  of  the  state.    Law  and  authority 

'  An  excellent  tyi>e  of  such  a  confederation  among  American 
Indians  may  be  found  in  Morgan's  "Ancient  Society."  A  varia- 
tion in  development  may  be  noted  in  the  early  history  of  Rome. 


STAGES   IN   DEVELOPMENT  OF  THE  STATE        37 

were  clearly  in  evidence;  definiteness  and  permanency 
in  organization  had  been  attained;  there  were  well-de- 
fined ideas  of  rights  and  obligations,  and  a  dis- 
^gstlte°^  tinct  consciousness  of  political  unity.  They 
differed  radically  from  modern  states,  however, 
in  that  a  patriarchal  community  was  a  state,  family  and 
church  in  one.  These  three  institutions  had  not  become 
differentiated  in  the  minds  of  men.  They  were  all  three 
controlled  by  the  same  leaders  and  might  be  considered 
merely  three  aspects  of  the  same  thing,  forming  a  kind 
of  political  trinity  in  unity.  Under  such  conditions  the 
jurisdiction  of  the  state  proper  did  not  extend  over  the 
other  two  institutions,  unless  by  a  legal  fiction  it  is  as- 
serted that  "  what  the  sovereign  enforces  he  commands."  i 
Toward  the  end  of  the  patriarchal  period  the  three  be- 
came differentiated  in  thought  and  were  looked  on  as 
coordinate,  each  exercising  supremacy  in  its  own  sphere, 
and  the  three  united  representing  the  supremacy  of  the 
entire  community.  Then  the  state  became  aggressive, 
through  the  influences  brought  about  by  commerce,  and 
steadily  began  to  encroach  on  the  sphere  of  parental  and 
ecclesiastical  control. 

III.  The  Period  of  Urban  Civilization 

A  third  stage  of  political  life  was  ushered  in  through 
the  development  of  commerce.  Even  in  primitive  times 
a  system  of  barter  and  trade  had  developed  among 
different  hordes.  A  brisk  traffic  was  carried  on  in  the 
exchange  of  salt,  food  supplies,  ornaments  for  the  dress, 
paints  for  the  body  and  jade,  flint  and  metals  for  tools 

'  For  discussion  of  this  point,  see  Willoughby,  p.  169. 


38  THE   DEVELOPMENT   OF   THE   STATE 

and  weapons.  Between  centers  producing  such  forms 
of  wealth  and  populous  centers  in  need  of  them,  well- 
Theinflu-  beaten  paths  were  made,  the  humble  begin- 
enceof  nings  of  the  modern  railroad.  When  wealth 
multiplied  through  flocks,  herds  and  agriculture, 
men's  needs  multiplied  proportionately.  Commerce  kept 
pace  with  the  demand.  Beasts  of  burden  were  trained 
to  the  yoke,  navigation  developed,  forms  of  money  as  a 
medium  of  exchange  were  devised,  and  the  merchant 
definitely  took  his  place  in  civilization.  With  commerce 
came  the  city,  that  great  agent  in  social  development. 
The  reason  for  the  rise  of  the  city  is  obvious.  Certain 
village  communities  established  themselves  in  the  center 
of  a  mining  district,  or  in  the  heart  of  fertile  lands  well 
suited  for  grazing  or  farming.  Others,  again,  at  favor- 
able spots  on  rivers,  such  as  the  mouth,  a  junction  or 
the  head  of  navigation.  As  trade  developed  between 
mining  or  food  centers  and  masses  of  population,  resting 
places  at  regular  intervals  were  established  for  the  con- 
venience of  travelers.  At  all  such  centers  the  market 
place  developed  and  trade  was  encouraged  by  the  main- 
tenance of  peace  and  order.  The  termini  of  trade 
routes  and  the  best  locations  between  the  termini  grew 
into  great  centers  of  population.  Here  gathered  the 
wealth  and  learning  of  the  time.  Here  was  to  be  found 
merchandise  of  all  descriptions.  From  all  parts  of  the 
known  world  came  the  keenest  men  of  business,  travelers 
of  broad  experience  well  versed  in  foreign  customs  and 
ideas,  and  wise  men  eager  to  add  to  their  knowledge. 
By  constant  social  intercourse  and  by  competition  of 
ideas,  the  mentality  of  the  population  rapidly  developed. 


STAGES  IN   DEVELOPMENT   OF  THE   STATE        39 

Increase  of  wealth  developed  new  wants,  higher  learning, 
broader  minds  and  a  more  thorough  organization  of 
social  institutions. 

Evidently  such  a  social  development  demanded 
changes  in  political  organization.  The  members  of  a 
Changes  in  Conservative  village  community  living  in  prac- 
or'anizl-  tically  the  same  way  as  their  fathers  might 
tion.  well  continue  the  customs  and  habits  of  their 

ancestors.  But  when  the  population  and  wealth  of  the 
community  increased  by  leaps  and  bounds,  when 
strangers  of  wealth  and  brain  capacity  settled  in  ever 
larger  numbers  within  their  borders,  modifications  had 
to  be  made.  The  village  lord  became  a  king,  his  little 
council  became  a  great  body  of  advisers  and  adminis- 
trators, the  petty  business  of  the  village  became  a  mass 
of  duties  requiring  the  services  of  many  hundreds.  Then 
followed  centralization  of  authority,  codification  of  cus- 
toms and  the  introduction  of  business  methods  in 
administration  through  the  organization  of  great  depart- 
ments of  state.  Increasingly  larger  numbers  of  influen- 
tial residents,  whether  native  or  foreign'  by  descent, 
shared  in  the  responsibility  of  government.  Such  mod- 
ifications brought  about  the  development  of  the  city 
state,  best  known  through  the  classic  examples  of  Greece 
and  Rome,  but  found  in  all  early  civilizations  charac- 
terized by  a  developed  commercial  life. 
^--J^^city  state,  by  war  or  more  peaceful  means,  might 
extend  its  influence  so  as  practically  to  control  many 
smaller  cities  and  large  areas  of  farming,  grazing  and 
mining  lands.  In  this  way  developed  another  type  of 
ancient  monarchy,  one  much  more  strongly  unified  and 


40  THE   DEVELOPMENT   OF   THE   STATE 

centralized  than  tribal  or  feudal  monarchies,  because  its 

several  parts,  by  more  frequent  intercourse  and  more 

vigorous  mentality,  attained  a  greater  harmony 

Centralized    ^£  QQjY^jy^Qj-(  interests  and  a  consciousness  of 

monarchy. 

national  unity.  The  best  illustration  of  such 
a  development  is  seen  in  the  Roman  empire,  which 
through  war  extended  its  boundaries  in  all  directions 
and  then  bound  together  its  discordant  parts  into  a 
harmonious  unity  through  ties  of  commercial  interest, 
centralized  provincial  administration  and  allegiance  and 
submission  to  a  common  law  and  an  imperial  sover- 
eignty. 

The  downfall  of  the  western  Roman  empire  was  a 
retrograde   step   in    civilization   and   plunged   western 

Europe  back  into  those  stages  of  political  life 
states"*^       characterized  by  village  communities  and  city 

states.  The  so-called  feudal  system  repre- 
sented the  movement  toward  confederation.  The  rise 
of  the  Holy  Roman  empire,  and  of  the  Papacy  in  its  am- 
bition for  temporal  authority,  represented  the  move- 
ment toward  the  confederation  and  centralization  of 
empires.  The  failure  of  both  of  these  to  realize  their 
aims,  coupled  with  the  revival  of  commerce  through  the 
influence  of  the  crusades,  the  invention  of  the  compass 
and  the  discovery  of  America,  caused  the  development 
of  smaller  empires  or  kingdoms,  known  usually  as  na- 
tional states.  These  national  states  were  commercial  in 
their  tendencies,  and  were  strongly  unified  by  definite 
communal  interests,  racial,  religious  and  economic.  This 
unity  of  mterests  tends  to  result  in  a  demand  for  political 
unity  or  independent  statehood  and  is  usually  discussed 


STAGES   IN   DEVELOPMENT  OF   THE   STATE        41 

in  political  theorizing  as  the  feeling,  or  the  principle  of 
nationality.!  Xhe  formation  of  national  states  started 
once  again  a  forward  movement  in  civilization  after  a 
thousand  years  of  seeming  inactivity,  during  which  the 
barbarians  of  the  West  were  slowly  veneermg  them- 
selves with  the  polish  and  civilization  of  Judea,  Greece 
and  Rome.  The  movements  of  recent  times  toward 
world  empire  are  best  illustrated  by  the  Napoleonic 
period  in  France  and  by  the  imperialistic  policies  of 
such  states  as  Russia  and  Great  Britain. 

IV.   The  Period  of  Industrial  Civilization 

The  last  and  greatest  era  in  the  development  of  civili- 
zation began  in  earnest  when  from  about  the  middle  of 
Theprob-  ^^^^  eighteenth  century  machinery  was  defi- 
lem  of  nitely  applied  to  the  manufacture  and  transpor- 
food  tation  of  goods  and  to  the  production  of  foods, 

supplies.  rpj^g  really  great  problem  of  material  civiliza- 
tion is  to  multiply  food  supplies  and  to  satisfy  the 
material  wants  of  humanity.  Population  increases 
easily  and  readily  under  favorable  conditions,  but  food 
supplies  come  only  by  hard  work  and  mental  toil.  Mal- 
thus  and  his  followers  have  shown  the  real  connection 
between  population  and  food  supplies,  holding  that, 
under  natural  conditions,  the  former  tends  to  multiply 
far  more  rapidly  than  the  latter.  Without  an  abundant 
supply  of  wholesome  food  man  cannot  do  his  best  work 
nor  develop  a  high  civilization.     Every  rapid  and  per- 

'  See  p.  76,  For  brief  discussion  of  nationality,  see  Willoughby, 
pp.  120-122.  For  modern  illustrations  of  demands  based  on 
nationality,  note  home-rule  movements  of  Ireland  and  Poland. 


42  THE   DEVELOPMENT   OF  THE   STATE 

manent  multiplication  of  food  supplies,  therefore,  fur- 
nishes the  basis  for  an  increase  in  human  energy  and 
progress.  All  the  great  eras  of  human  development 
have  been  preceded  by  a  permanent  addition  to  the 
sources  of  food  supplies.  This  may  be  illustrated  by 
the  development  that  came  from  the  use  of  weapons  in 
hunting,  tools  and  machinery  in  industrial  life  and  from 
the  utilization  of  natural  forces  in  production  and 
transportation. 

If  one  traces  the  wonderful  history  of  human  ingenuity 
in  mastering  the  forces  of  nature,  enslaving  them  and 
compelling  the  energy  of  the  universe  to  do  the 
tance  of  the  will  of  man,  it  becomcs  possible  to  understand 
*°°  ■  what  a  powerful  stride  was  taken  in  develop- 

ment when  men  for  the  first  time  consciously  used  tools. 
It  v/as  the  beginning  of  civilization,  and  from  the  very 
first  its  importance  was  realized.  Men  die,  but  their 
ideas  and  inventions  live  after  them.  Each  new  ac- 
quisition becomes  the  parent  of  many  others,  and  each 
contributes  its  quota  to  the  multiplication  of  human 
possibilities. 

From  the  time  when  primitive  man  began  to  utilize 
as  a  weapon  a  rude  club  or  a  clinched  stone  his  develop- 
ment has  been  marked  by  a  steady  advance  in  invention. 
The  club  and  the  stone  united  formed  the  hammer  and 
the  ax,  the  sharpened  stick  for  digging  purposes  de- 
veloped into  the  spade,  the  hoe  and  the  plow.  The 
edged  tool  typified  by  the  knife  developed  from  the  keen 
edge  of  a  sharp  chip  of  flint.  From  such  primitive  tools 
have  developed  slowly,  but  with  rapidly  accelerating 
speed,  the  numerous  forms  of  tools  and  weapons  used 


STAGES   IN   DEVELOPMENT  OF  THE   STATE        43 

to-day  in  military  and  industrial  life.  Each  great  stage 
in  economic  development  stimulated  men's  inventive 
faculties  and  enabled  them  the  better  to  utilize  some 
newly  discovered  force  of  nature.  Fire  was  rendered 
obedient  to  the  human  will;  wind  and  water  were  har- 
nessed for  purposes  of  transportation,  the  utilization  of 
the  force  of  gravitation  gave  strength  to  human  muscle ; 
the  inventive  capacity  of  the  race  learned  how  to  con- 
trol the  energy  of  steam  and  electricity,  and  for  many 
ages  the  knowledge  of  the  possibilities  arising  from  the 
subjugation  of  the  animal  world,  and  the  utilization  of 
the  fecundity  of  nature,  has  furnished  tangible  and  direct 
results  in  the  multiplication  of  food. 

Thousands  of  years  lie  between  the  first  rude  boat  in 
the  form  of  a  log,  paddled  by  hand,  and  the  developed 
utilization  ocean  liner  of  to-day.  Yet  they  are  alike  in 
"Iwe^rsof  ^^^^^  ^^^^y  ^^^^  utilize  natural  power  for  pur- 
nature,  poses  of  transportation.  The  real  distinction 
is  quantitative  not  qualitative.  The  one  transported 
with  difficulty  and  danger  a  few  pounds  at  a  snail's 
pace,  the  other  carries  swiftly  and  safely  thousands 
of  tons'  burden  and  hundreds  of  lives.  This  develop- 
ment in  the  use  of  machinery  had  been  slowly  going 
on  ever  since  the  human  race  began,  but  about  the 
middle  of  the  eighteenth  century  men  apparently  had 
reached  their  writs'  end  in  productivity.  Production  by 
hand  and  by  crude  machinery  worked  by  hand  or  animal 
labor  was  not  sufficient  for  the  demand.  Population 
was  checked  through  the  relative  dearness  of  food  and 
necessities,  and  commerce  could  not  expand  through 
lack  of  goods  to  export.     England  had  immense  wealth 


44  THE   DEVELOPMENT  OF  THE  STATE 

in  iron  ores  and  coal,  but  not  even  the  muscle  of  the 
''village  blacksmith"  could  turn  goods  out  cheaply 
enough  and  fast  enough.  At  last,  in  1769,  after  men  had 
experimented  for  at  least  a  hundred  years  with  steam, 
came  Watt's  steam  engine.  In  the  nineteenth  century 
came  the  knowledge  of  the  use  of  electricity,  and  from 
these  times  the  inventive  ingenuity  of  the  western  na- 
tions has  been  devoted  to  the  multiplication  of  ma- 
chinery so  as  to  utilize  the  boundless  energy  of  the  uni- 
verse through  control  over  the  power  generated  by 
steam  and  electricity.  The  significance  of  all  this  is, 
that  the  productive  capacity  of  the  human  race  in  both 
goods  and  food  supplies  is  multiplied  many  thousand- 
fold, with  the  advantage  that  machines,  instead  of  de- 
manding their  proportionate  share  of  organic  food,  are 
satisfied  when  fed  with  fuel.  In  other  words,  the  pro- 
ductive power  of  the  population  is  multiplied  geometric- 
ally but  its  consumptive  power  arithmetically.  Western 
nations,  therefore,  may  expand  their  populations  and 
yet  through  machmery  and  commerce  multiply  food 
supplies  in  such  abundance  as  to  banish  almost  from 
possibility  the  danger  of  famine.  The  inevitable  effect 
of  an  expansion  of  material  capacity  is  an  expansion  of 
intellectual  attainment.  Scientific  discoveries  in  chem- 
istry and  biology,  rendered  possible  by  material  develop- 
ment, powerfully  aid  in  the  development  of  food  supplies 
and  other  material  necessities. 

As  a  further  result  of  this  development,  commerce  has 
multiplied  past  all  precedent,  every  corner  of  the  habit- 
able earth  has  become  known  and  explored,  hermit 
nations  are  forced  out  for  better  or  for  worse  into  western 


STAGER   IN   DEVELOPMENT  OF  THE  STATE        45 

civilization,  governmental  activity  has  expanded  so  as 
to  meet  new  conditions.  Larger  interests,  greater 
Thestru  -  ^^'^alth  and  increased  population  give  greater 
gie  for  fighting  power,  and  to  the  leading  nations  the 
old  struggle  for  empire  once  more  comes  to  the 
front.  They  strain  every  nerve  to  develop  material  and 
mental  capacity,  so  as  to  attain  supremacy  in  inter- 
national competition;  they  seek  to  expand  by  extending 
their  sway  over  nations  inferior  in  attainment,  and  they 
readjust  their  political  organizations  so  as  to  manage 
more  wisely  their  great  interests.  In  such  an  age  as  this 
political  change  is  inevitable.  World  politics  finds  no 
place  for  the  petty  state,  the  backward  nation,  the 
ultraconservative  people.  Broad  and  high  intelligence, 
moral  energy,  capacity  for  hard  work  and  bold  initiative 
and  invention  are  the  virtues  of  the  age.  Intelligence 
in  the  state  involves  democracy  in  the  system ;  immense 
resources  demand  executive  and  administrative  capac- 
ity; the  necessity  of  accomplishing  a  desired  end  by  con- 
centrating every  possible  oimce  of  energy  at  the  proper 
place,  insures  concentration  of  governmental  power. 
Such  capacities  and  virtues,  in  a  struggle  for  national 
existence  or  w^orld  supremacy,  are  not  matters  of  indif- 
ference but  necessities  for  survival,  and  hence  the  present 
age  tends  to  develop  a  political  life  suited  to  the  attain- 
ment by  states  of  whatever  will  contribute  to  the  highest 
development  of  their  peoples. 

The  various  aspects  assumed  by  the  state  in  the  course 
of  its  historical  development  may  now  be  noted  in  re- 
view. In  primitive  times  are  to  be  traced  the  begin- 
nings of  the  fundamental  ideas  involved  in  the  theory 


46  THE   DEVELOPMENT   OF   THE   STATE 

of  the  modern  state;  the  loosely  organized  horde  repre- 
sents the  nation,  and  the  power  wielded  by  its  natural 
leaders  typifies  the  power  of  sovereignty  in 
thTSte"^  later  times.  The  pastoral  stage  of  the  patri- 
archal period  substituted  the  tribe  for  the  horde, 
and  gave  greater  definiteness  to  the  organization  of  the 
community.  The  agricultural  stage  gave  the  clan  or  the 
village  community,  which  slowly  developed  by  conquest 
and  alliance  into  loosely  confederated  empires.  At  the 
same  time  the  influence  of  rapidly  growing  commerce 
gave  birth  to  the  city  state,  best  known  in  the  familiar 
Greek  form,  but  found  also  in  the  medieval  cities  of  Ger- 
many and  Italy.  In  the  East,  in  Greece  under  Alexan- 
der, and  in  Rome,  as  well  as  in  later  Europe,  developed 
the  idea  of  a  world  empire,  the  dream  and  the  ambition 
of  every  great  military  leader  of  all  times.  This  ideal 
was  translated  by  Christianity  into  dreams  of  a  spiritual 
empire  in  which  all  the  nations  of  the  world  would  pay 
allegiance  to  the  Founder  of  the  Faith,  and,  with  the 
development  of  the  Papacy,  to  his  successor  seated  in  St. 
Peter's  chair  at  Rome. 

The  rise  of  commerce  and  the  consequent  differentia- 
tion of  interests  among  the  peoples  of  western  Europe 
resulted  in  the  formation  of  national  states  held  firmly 
together  by  ties  of  common  interests  and  nationality. 
Intercourse  among  these  gave  great  impetus  to  the  de- 
velopment of  diplomacy,  permanent  embassies  and  in- 
ternational law,  all  designed  to  aid  in  the  development  of 
economic  interests  and  the  maintenance  of  peace.  The 
discovery  of  America  not  only  poured  mineral  wealth 
into  the  impoverished  kingdoms  of  Europe,  but  ushered 


STAGES   IN   DEVELOPMENT   OF   THE   STATE        47 

in  the  great  era  of  colonization  in  which  Spain,  Portugal, 
Holland,  France  and  Great  Britain  vied  with  one  an- 
other in  seeking  out  by  exploration  all  of  the  unknown 
w^orld  that  could  be  utilized  for  purposes  of  commerce 
and  exploitation,  A  happy  combination  of  circum- 
stances developed  in  the  United  States  of  America  the 
federation,  an  improved  form  of  confederation,  combin- 
ing in  one  organization  the  advantages  of  autonomous 
ccmmonwealths  with  the  high  centralization  of  an 
empire  in  matters  of  general  policy.  This  form,  so 
well  adapted  to  the  needs  of  great  empires,  is  rapidly 
proving  its  utility  as  a  form  of  government;  indeed,  the 
time  may  yet  come  when  the  smaller  states  will  best 
secure  their  autonomy  and  nationality  by  uniting  in 
federation  with  one  another  and  with  the  larger  leading 
states.  _/ 

These  in  brief  are  the  epochs  in  the  development  of  the 
state,  and  if  this  line  of  evolution  and  these  types  of 
governmental  forms  be  fixed  in  mind,  the  development 
of  any  of  the  historic  states  of  the  w^orld  can  be  followed 
with  much  greater  ease  and  profit. 

SPECIAL  REFERENCES 
Writers  who  seek  to  show  that  political  and  social  develop- 
ment is  largely  determined  by  economic  conditions  are  now 
numerous.  Among  these  the  following  are  included  in  the 
bibliography:  Brooks  Adams,  Buckle,  Cunningham,  Crozier, 
LoRiA,  Patten,  Robertson,  Rogers,  Seligman,  Sidgwick,  and 
Wallis. 

Slavery:  Ingram,  and  Veblen;  Ward,  "Ancient  Lowly." 
The  Social  Importance  of  Food:  Russell,  and  Kidd. 
The  Village  Community:  Baden-Powell,  Gomme,  Hourwich, 
Maine,  Seebohm,  and  Simcox. 


48  THE   DEVELOPMENT   OF   THE   STATE 

Tribal  Organization :  Gummere,  Keller,  Morgan,  and  Seebohm. 
Patriarchal    Civilization:    Fustel,    Hearn,    Kovalevsky,    and 

SiMCOX. 

The  City  State :  Brooks  Adams,  Fowler,  Fustel  de  Coulanges, 

Greenidge,  and  Munro. 
Commerce:  Clive  Day. 


PAKT  TWO 
THE  SOVEREIGNTY  OF  THE  STATE 


CHAPTER  III 

POLITICAL  SCIENCE  AND   SOVEREIGNTY 

After  this  rapid  summary  of  political  development, 
it  now  becomes  possible  to  study  more  closely  the  laws 
The  field  ^^^  principles  underlying  the  state  and  its 
of  political  activities.  The  branch  of  knowledge  which 
makes  a  study  of  these  is  known  as  Political 
Science,  which  may  be  defined  as  the  science  concerned 
with  the  study  of  the  state  and  of  the  conditions  essential 
to  its  existence  and  development.  In  other  words,  the 
field  of  political  science  should  include  a  study  of  the 
origin  of  the  state,  its  nature,  its  numerous  forms  of  or- 
ganization, its  aims,  powers,  methods  of  activity  and 
the  conditions  that  aid  or  retard  its  development. 

The  state  is  the  most  important  of  modern  social  or- 
ganizations. It  has  been  and  is  a  mighty  factor  in  civ- 
ilization. Though  in  history  it  has  frequently  been  the 
instrument  of  tyranny  and  despotism,  and  has  often 
hindered  rather  than  helped  humanity,  yet  it  admittedly 
stands  for  the  highest  in  human  development.  For  at 
least  twenty-five  hundred  years  the  study  of  this  insti- 
tution has  occupied  the  minds  of  the  wisest  philosophers 
and  most  thoughtful  statesmen,  and  ancient  \\Titings 
even  yet  supply  the  basis  for  modern  political  studies.  ^ 
We  are  at  the  present  time  in  an  era  of  numerous  im- 

*  For  example,  Aristotle's  "Politics." 
51 


52  THE  DEVELOPMENT  OF  THE  STATE 

portant  developments  in  political  life;  colonization,  ex- 
pansion, federation  and  democracy  are  so  powerfully- 
affecting  the  political  conditions  of  the  world  that  the 
study  of  political  science  has  become  especially  impor- 
tant. Most  of  all  is  this  true  in  the  United  States  of 
America,  which  as  a  leading  state  has  an  important  part 
in  the  discussion  and  formulation  of  world  policies. 

The  subdivisions  of  political  science  are  numerous  and 
the  boundaries  of  each  ill  defined.  There  are  in  conse- 
quence many  possible  classifications,  each  de- 
dilSonr'  termined  by  the  standpoint  of  the  particular 
writer,  ^  If  the  state  be  viewed  abstractly,  we 
have  the  branch  known  as  political  philosophy  or  theory, 
devoting  itself  to  reasonable  explanations  of  the  princi- 
ples underlying  political  life  and  development.  As  in 
the  case  of  other  philosophies,  there  may  also  be  a  his- 
tory of  political  theory,  a  subject  rightly  receiving  much 
attention  at  the  present  time.  Another  branch  of  polit- 
ical science  devotes  itself  to  the  concrete  aspect  of  the 
state,  studying  its  development,  the  conditions  that  aid 
or  retard  its  prosperity,  and  its  numerous  forms  of  or- 
ganization and  administration.  Again,  attention  may 
be  given  to  the  functions  or  activities  of  the  state,  the 
theory  of  these  explained,  and  the  practice  of  various 
states  worked  out  historically  or  comparatively.  This 
would  lead  naturally  to  the  study  of  law  or  jurisprudence 
in  all  its  branches  and  also  to  the  study  of  the  art  of  pol- 
itics, and  the  methods  whereby  states  formulate  their 
policies  and  seek  to  carry  them  out.     Again,  states  have 

'  As  illustrations  of  classifications,  see  Willoughby,  pp.  4-5,  and 
Pollock,  pp.  94-95. 


POLITICAL   SCIENCE  AND   SOVEREIGNTY  53 

dealings  and  relationships  one  with  another  and  have 
developed  a  code  of  international  law  and  the  art  of 
diplomacy,  both  of  which  branches  are  of  extreme  im- 
portance in  these  days  of  great  states  and  complex  in- 
terests. Each  of  these  general  topics  is  itself  susceptible 
of  numerous  subdivisions,  but  a  complete  and  exhaustive 
classification  falls  more  properly  under  political  theory, 
and  is  not  demanded  by  this  study.  Enough  has  been 
said,  however,  to  call  attention  to  the  scope  and  im- 
portance of  political  science  and  to  indicate,  briefly,  its 
general  divisions. 

It  is  a  branch  of  the  larger  study  known  as  social  sci- 
ence or  sociology.  Social  science  devotes  itself  to  the 
Its  reia  study  of  associated  man,  either  by  seeking  to 
tion  to  ascertain  the  principles  and  laws  underlying 
sociology,  i^^j^g^j^  activity  or  by  concrete  studies  of  vari- 
ous forms  of  social  life.  The  phenomena  of  social  life 
are  closely  related  and  interdependent,  but,  for  conven- 
ience, they  are  regularly  classified  into  groups,  and  each 
class  or  group  of  phenomena  made  the  subject  of  special 
study.  In  this  way  are  developed  such  social  studies  as 
economics,  political  science,  ethics,  comparative  religion, 
education  and  history. 

Evidently  all  social  activity  will  find  expression  in 
some  form  of  human  association.  Human  beings  by  in- 
stinct and  habit  tend  to  associate  together  in 
of^terar  communities  and  the  members  of  these  are  held 
together  by  such  permanent  and  powerful  ties 
as  those  of  common  blood,  language,  customs,  religion 
and  economic  occupations.  In  such  communities  special 
associations  are  naturally  formed  for  the  purpose  of  safe- 


54  THE   DEVELOPMENT   OF   THE   STATE 

guarding  and  developing  some  particular  common  in- 
terest or  set  of  interests,  a  tendency  especially  charac- 
teristic of  higher  civilization.  But  when  a  community 
definitely  and  permanently  becomes  organized  as  a  unit 
for  purposes  of  self-defense  and  general  welfare,  then  the 
community  is  politically  organized  and  may  be  called  a 
body  politic. 

All  bodies  politic  are  not  states.  Throughout  the  in- 
habited world  there  are  numerous  bodies  politic,  large 
and  small,  each  definitely  organized  for  purposes  of  com- 
mon defense  and  welfare,  but  most  of  these  are  in  subor- 
dination to  similar  but  larger  organizations.  Some  of 
these  larger  organizations  are  recognized  as  independent 
and  sovereign,  in  which  case  they  are  known  as  national 
bodies  politic  and  are  called  states.  Tlie  subordinate 
bodies  politic  are  known  by  such  names  as  provinces,  de- 
partments or  counties,  cities  or  municipalities  and  town- 
ships or  communes.  A  state,  therefore,  may  be  defined 
for  theoretical  purposes  as  a  sovereign  political  unity,  or, 
if  studied  concretely,  i,  e.,  through  its  organization,  it 
may  be  defined  as  a  national  body  politic  having  sover- 
eignty. Tlie  term  nation  is  applied  to  the  unity  spoken 
of  as  the  national  body  politic,  and  the  term  people  is 
applied  to  the  collective  mass  of  inhabitants  having  dom- 
icile within  the  state,  owing  it  allegiance  and  entitled  to 
its  protection.  ^A^ien  emphasis  is  placed  on  the  fact 
that  the  state  has  authority  over  its  members,  these 
are  called  subjects;  if  emphasis  is  on  the  fact  that  the 
members  have  rights  within  the  state,  then  the  term 
citizen  might  better  be  used.  In  constitutional  forms  of 
government  male  adult  citizens,  under  certain  restric- 


POLITICAL   SCIENCE   AND   SOVEREIGNTY  55 

tions,  are  given  the  right  to  elect  by  vote  officers  or  rep- 
resentatives, and  the  collective  body  of  such  citizens  is 
known  as  the  electorate.  This  body  in  popular  discussions 
is  regularly  assumed  to  be  the  exponent  or  mouthpiece 
of  the  people. 

Sovereignty 

As  the  state  exists  in  order  to  safeguard  the  interests  of 
the  community,  it  must  evidently  have  authority  and 
The  mean-  power  to  commaud  the  services  of  its  subjects, 
ing  of         "Yhx^  authority  and  power  is  called  sovereiqnty, 

sover-  ^  i-  o      01 

eignty.  and  sovereignty  may  be  defined  as  the  su- 
premacy of  the  state  over  the  lives  and  property  of 
its  subjects.  It  is  the  most  essential  attribute  of  the 
state.  There  can  be  no  state  without  sovereignty  and 
every  body  politic  having  sovereignty  is  a  state.  The 
word  "supremacy"  must  not  be  interpreted  in  the  sense 
of  partial  supremacy.  Sovereignty  implies  absolute  su- 
premacy. A  state  must  be  entirely  free  from  the  dom- 
ination of  bodies  politic  external  to  itself,  and  must 
be  completely  supreme  within  its  own  borders.  It  can- 
not surrender  in  whole  or  in  part  its  sovereignty  and 
remain  a  state.  It  may  delegate  the  exercise  of  one  or 
more  of  its  sovereign  powers  to  bodies  politic  subordi- 
nate, or  even  external,  to  itself,  if  only  it  reserves  the 
right  to  recall  such  delegated  power  or  powers  at  will. 
Every  political  power,  therefore,  exercised  by  a  subordi- 
nate body  politic  within  the  jurisdiction  of  a  state,  is 
derived  from  the  sovereignty  of  the  state  which  may 
recall  it  at  will. 

This  supremacy  of  the  state  over  the  lives  and  property 


56  THE  DEVELOPMENT  OF  THE  STATE 

of  its  subjects  seems  to  be  a  dangerous  power,  and  might 
easily  result  in  despotism  and  the  destruction  of  per- 
Limitations  •'^^nal  liberty.  Yet  after  all,  the  aim  of  the 
on  govern-  state  is  the  protection,  not  the  destruction,  of 
life  and  property ;  and  with  all  its  defects  it  has 
measurably  succeeded  in  its  purpose.  Tendencies  toward 
tyranny  can  regularly  be  checked  by  an  intelligent  citi- 
zen body,  who  can  so  arrange  the  constitution  of  the 
state  as  to  make  the  government  a  powerful  agency  in 
the  development  of  all  that  is  needful  and  helpful  in 
national  prosperity.  The  state  should  exercise  whatso- 
ever powers  seem  necessary  and  expedient  for  national 
welfare,  provided  that,  in  so  doing,  it  meets  with  the 
tacit  approval  and  hearty  support  of  the  people.  If,  in 
the  opinion  of  the  people,  it  is  inexpedient  to  allow  the 
government  to  exercise  large  powers,  constitutional  re- 
strictions can  minimize  governmental  activity  almost 
to  the  vanishing  point.  If,  on  the  other  hand,  it  seems 
wise  to  enlarge  the  powers  in  exercise,  one  limitation 
after  another  can  be  removed,  until  the  government  may 
direct  and  regulate  a  very  large  proportion  of  the  powers 
included  under  the  notion  of  sovereignty. 

Such  limitations  on  the  exercise  of  sovereign  powers 
take  the  form  of  bills  of  rights,  constitutional  regula- 
tions of  governmental  power  and  control  over  officials, 
effective  enough  to  make  them  useful  agents  rather 
than  tyrannical  masters  of  the  people.  Just  as  an 
autocratic  king  may  be  so  dominated  by  his  ministers 
as  to  be  a  mere  puppet  in  their  hands,  so  a  sovereign 
state  may  have  its  governmental  organization  so 
wisely    regulated   by    constitutional    provisions    as    to 


POLITICAL   SCIENCE  AND   SOVEREIGNTY  57 

make  it  the  greatest  factor  in  the  development  even  of 
individuahty. 

These  regulations  or  limitations  will  naturally  arise 
through  the  expression  of  an  intelligent  public  opinion. 
Yet  as  a  matter  of  fact  even  in  modern  democracies  the 
expressed  will  of  the  government  is  only  approximately 
like  that  of  the  people,  and  is  frequently  veiy  different. 
Hence  the  state,  voiced  by  its  governmental  organs, 
frequently  clashes  with  public  opinion.  If  this  has 
formal  and  regular  channels  i  through  which  it  may 
readily  influence  the  government — well  and  good;  but 
if  not,  then  there  is  a  constitutional  system  that  does 
not  truly  represent,  and  there  will  inevitably  arise,  with 
the  growth  of  intelligence,  discord,  internal  strife  and 
revolutions.  This  condition  is  so  common  even  in  the 
present  century  that  much  more  attention  should  be  de- 
voted on  all  sides  (1)  to  the  development  of  an  intelligent 
public  opinion  voicing  all  the  interests  of  society,  and 
(2)  to  the  perfection  of  governmental  organization  so  as 
to  allow  such  public  opinion  definitely  and  forcefully  to 
express  itself  in  the  formulation  of  a  wise  national  policy. 

The  conception  of  sovereignty  as  supreme  authority 
over  the  lives  and  property  of  subjects  is,  then,  the  most 
Develop-  csscutial  principle  in  the  modern  theory  of  the 
meat  of  state.  It  has  already  been  said  that  when  a 
of  sever-  commuuity  definitely  organizes  itself  for  self- 
eignty.  protcction,  it  thereby  becomes  a  body  politic. 
In  early  civilization,  long  before  private  property  de- 
veloped, communities  organized  war  bands  in  order  to 

*  Such  as  the  electorate  or  a  system  of  political  parties  enjoying 
free  speech. 


58  THE   DEVELOPMENT   OF   THE   STATE 

make  raids  against  weaker  neighbors  or  to  resist  inroads 
on  the  part  of  warhke  enemies.  Such  a  necessity  was 
ever  present  in  those  troublous  times,  and  the  duty  of 
fighting  for  the  common  safety  was  incumbent  on  every 
member  of  the  community  able  to  bear  arms.  For  this 
reason  the  group  probably  had,  in  most  cases,  a  military 
organization,  and  thereby  easily  developed  ideas  of 
authority,  allegiance  and  responsibility  for  the  general 
safety. 

If  communal  life  was  peaceful  through  abundance  of 
food  supplies  and  absence  of  aggressive  neighbors, 
similar  ideas  might  readily  arise  in  the  regulation  of 
communal  customs  and  property  rights,  since  the  notion 
of  general  safety  would  chiefly  involve  communal  rights 
of  food-getting  and  property  as  the  fundamental  con- 
dition of  life.  But  the  embryonic  state,  whether  funda- 
mentally a  war  band  or  an  economic  group,  did  not 
assert  its  right  at  that  time  to  regulate  religion,  private 
quarrels  or  individual  property  rights  as  these  developed. 
It  merely  protected  general  interests  in  times  of  offensive 
or  defensive  war  and  left  to  the  family  and  to  similar 
social  institutions  the  regulation  of  other  forms  of  social 
life.  As  i)opulation  and  wealth  increased,  and  human 
social  relationships  became  more  complex,  the  state 
slowly  but  surely  began  to  extend  its  jurisdiction  over 
the  family,  withdrawing  by  degrees  from  the  control  of 
this  institution  the  regulation  of  property  rights  and  the 
safeguarding  of  life.  At  the  same  time,  by  similar  proc- 
esses, the  authority  of  religious  organizations  became 
more  and  more  subordinate  to  the  state. 

Through  this  extension  of  authority,  the  power  of  the 


POLITICAL   SCIENCE  AND   SOVEREIGNTY  59 

state  was  greatly  enlarged,  and  a  theory  of  sovereignty 
as  supreme  power  was  slowl}'  developed  in  order  to 
justify  the  greater  activity  of  the  state.  Such  a  theory 
of  sovereignty  may  be  traced  in  Athens,  in  Rome  and  in 
Europe  after  the  Renaissance.  It  was  common  enough 
even  in  medieval  academic  discussions,  but  did  not  be- 
come popular  until  the  seventeenth  century.  The  enor- 
mous development  of  wealth  and  population  since  that 
time  has  caused  the  general  adoption  of  such  a  defhiition 
of  sovereignty  for  the  reason  that  an  efficient  regulation 
of  public  interests  demands  a  much  larger  sphere  of 
governmental  activity.  Older  theories  in  consequence 
have  to  be  modified  to  suit  the  newer  conditions.  The 
political  theorists  of  the  Reformation,  typified  by  Bodin 
and  Hobbes,  and  the  social  contract  writers  of  later 
times,  Locke,  for  example,  brought  the  matter  definitely 
into  discussion,  until  finally  Rousseau,  in  his  "Social 
Contract,"  sought  to  show  how  a  theory  of  absolute 
sovereignty  might  be  harmonized  with  democracy. 
Ever  since  that  time,  the  theory  has  been  worked  out 
more  carefully  in  details,  and  is  coming  more  and  more 
mto  acceptance.  '\ATiether  fully  accepted  or  not,  all 
progressive  nations  assume  the  theory  to  be  true,  and 
extend  governmental  jurisdiction  over  any  function 
whatsoever  when  public  interest  seems  to  demand  it. 
In  this  way  economic,  domestic  and  religious  institu- 
tions are  increasingly  passing  under  the  power  of  the 
state.  Illustrations  of  this  tendency  are  seen  in  pro- 
tective tariffs,  banking  and  currency  legislation,  in  the 
subordination  of  the  church  to  the  state,  in  the  regula- 
tion of  inheritances  and  kinship  rights,  In  civil  marriage 


60  THE   DEVELOPMENT   OF  THE   STATE 

and  divorce  and  in  the  secularization  of  education  and 
the  assumption  of  it  by  the  state  as  a  pubhc  function. 

Though  the  early  and  the  late  theories  of  sovereignty 
seem  so  far  apart,  they -can  by  interpretation  be  made 
Modern  ^^  harmouize.  Sovereignty  still  implies  that 
meaning      tlic  State  merely  protects  life  and  property,  but 

of  "  life  T  /v 

and  prop-  the  dmereuce  lies  m  the  meaning  assigned 
*''*^'"  to  the  terms.     Protection  is  not  only  defense 

against  positive  aggression  of  a  hostile  foe,  but  denotes 
also  a  parent-like  care  which  shields  against  every  pos- 
sibility of  harm.  Not  merely  the  securing  of  physical 
existence  but  also  the  fostering  of  mental  and  spiritual 
life  is  within  the  scope  of  the  state.  Property  includes 
not  only  material  wealth,  but  intangible  goods,  such  as 
reputation,  rights  and  happiness.  Under  such  broad 
definitions  the  protection  of  life  and  property  has  come 
to  mean  that  the  state  may  do  anything  expedient,  and 
with  such  a  scope  for  governmental  activity  sovereignty 
can  only  be  defined  as  absolute  power.  One  may,  how- 
ever, feel  sure  that  in  practice  the  power  of  the  state  will 
be  exercised  pari  passu  with  the  utilization  of  scientific 
methods  and  ideas  in  government,  and  with  the  attain- 
ment of  broad  intelligence  and  sound  morality  on  the 
part  of  the  people,  for  the  scope  of  power  exercised  by  a 
despotic  government  is  in  practice  very  much  less  than 
that  exercised  under  constitutional  democracies. 

Discussions  and  theories  such  as  these  are  not  merely 
questions  for  practice  in  debate.  They  are  attempts  in 
explanation  of  the  great  problems  presented  on  all  sides 
in  political  life.  New  conditions  of  life  compel  new 
theories  and  restatements  of  older  theories.    A  great 


POLITICAL   SCIENCE  AND   SOVEREIGNTY  61 

theory  clearly  explained  is  a  revelation  to  the  men  of 
its  day.  It  shows  them  the  causes  and  the  reason 
impor-  underlying  the  life  of  their  time,  it  epitomizes 
iMiticai  complex  phenomena  so  that  the  average  man 
theories.  may  understand,  and  it  is  one  of  the  greatest 
aids  to  the  development  of  a  larger  interpretation  of 
civilization.  Wlien  civilization  is  practically  stationary, 
political  theorizing  is  merely  a  formulation  of  accepted 
and  authoritative  beliefs  in  regard  to  the  existing  order 
of  things.  But  in  times  of  transition  or  of  rapid  develop- 
ment there  are  regularly  wide  differences  in  political 
theories.  Furthermore,  in  former  periods  the  authority 
of  the  state  was  so  largely  restricted  by  powers  held  by 
family,  church  and  economic  group  that  discussions  in 
regard  to  the  state  were  relatively  unimportant.  But 
when  the  sovereignty  of  the  state  is  defined  as  supreme, 
widely  divergent  political  theories  should  be  carefully 
scrutinized  so  as  to  obtain  a  clearer  and  more  scientific 
explanation  of  the  facts  and  tendencies  of  political  life. 

Such  explanations  will  throw  light  on  the  principles 
involved  in  the  evolution  of  the  state,  on  the  relative 
importance  of  the  mdividual  and  of  the  community  and 
on  the  exercise  of  sovereign  powers.  They  make  clearer 
the  value  of  democratic  and  aristocratic  ideals,  and  in- 
dicate the  emphasis  that  should  be  placed  on  moral, 
educational  and  economic  factors  by  wise  statesmen. 

A  really  wise  statesman  is  more  than  a  skilled  poli- 
tician. He  should  be  as  Aristotle  says,i  acquainted  with 
:!vhat  is  best  in  theory  as  well  as  with  what  is  best  under 
given  conditions.  He  should  know  the  history,  develop- 
1  "  PoUtics,"  Book  IV,  Sec.  1. 


62  THE   DEVELOPMENT   OF   THE   STATE 

meiit  and  purpose  of  the  state,  and  the  best  theoretical 
and  the  best  practicable  forms  of  government.  He 
should  also  be  able,  because  of  his  large  knowledge  of 
governmental  agencies  in  different  parts  of  the  world,  to 
suggest  remedies  for  defects  in  existing  governmental 
systems. 

SPECIAL  REFERENCES 

Political  Science:  Bagehot,  Bosanquet,  Burgess,  Lilly, 
McKechnie,  Pollock,  Willoughby,  Woolsey  ;  Rousseau, 
"Social  Contract." 

History  of  Political  Theories:  Dunning,  Carlyle,  Figgis, 
Gierke,  Graham,  Merriam,  Michel,  and  Willoughby; 
Political  Science  Quarterly,  vol.  xv,  p.  75,  W.  W.  Wil- 
loughby, "Value  of  Political  Philosophy." 

Sovereignty:  Freund,  and  Merriam;  Bryce,  "Studies." 


CHAPTER  IV 

ESSENTIAL   POWERS   OF   THE   STATE 

From  the  consideration  of  sovereignty  itself  we  may 
now  pass  to  the  apphcation  of  it  in  the  various  aspects 
of  national  life,  first  outlining  in  a  general  way  the  rela- 
tion of  sovereignty  to  the  essential  powers  of  the  state. 

The  authority  of  the  state  in  respect  to  the  protec- 
tion of  life  and  property  is  often  discussed  under  several 
Sovereignty  terms,  such  as  the  war  power,  the  police 
identified      power  or  the  power  to  prescribe  the  peace  of 

with  the  ,  /   1         1  .        ,  N         -n.  1 

essential  the  State  (the  kings  peace).  But  whatever 
powers.  name  may  be  applied  to  such  manifestations  of 
supremacy,  whether  exerted  in  carrying  on  war,  in  sup- 
pressing riots  and  rebellion  or  in  checking  crime,  it  is 
but  another  name  for  sovereignty,  which  is  the  collective 
term  for  whatever  power  is  possessed  by  the  state. 
Certain  aspects  of  sovereign  power,  however,  are  so  im- 
portant in  themselves  that  it  is  customary  to  speak  of 
sovereignty  as  though  made  up  of  three  essential  powers, 
namely,  the  police  power,  including  the  war  power,  the 
power  of  taxation  and  the  power  of  eminent  domain. 
By  police  power  is  meant  the  power  of  the  state  to  do 
anything  needful  for  the  safety  and  welfare  of  the  nation 
{salus  populi  swprema  lex).  The  power  of  taxation  im- 
plies that  the  state  may  take  from  its  subjects  the 
services  and  property  necessary  for  its   support.    The 

63 


64  THE  DEVELOPMENT   OF  THE   STATE 

power  of  eminent  domain  implies  that  the  state  has  the 
right  to  take  from  its  subjects  their  lands  or  property 
for  public  use.  In  all  states  that  have  developed  along 
democratic  lines  these  powers  are  constitutionally  safe- 
guarded, so  as  to  secure  the  people  against  governmental 
tyranny;  but  in  practice  it  is  understood  that  such  re- 
strictions are  for  times  of  peace.  AVhen  necessity  arises 
the  riot  act  is  read  or  martial  law  proclaimed,  civil  and 
constitutional  guaranties,  like  habeas  corpus,  are  sus- 
pended, and  the  government,  in  the  exercise  of  the 
so-called  war  or  police  power,  takes  into  its  hands  the 
full  power  of  sovereignty  on  the  plea  that,  inter  anna 
leges  silent.  In  well-ordered  states,  when  the  crisis  is 
over,  the  government  may  be  brought  to  account  for 
the  exercise  of  any  unnecessary  arbitrariness. 

It  is  easy  to  see  in  all  this  that  the  so-called  police 
power  is  merely  another  name  for  sovereignty,  and  that 
the  other  so-called  essential  powers  are  simply  implica- 
tions arising  from  that.  If  the  state  is  to  protect  the 
nation  from  harm  evidently  it  must  have  the  power  to 
raise  the  means  for  the  performance  of  this  duty.  It 
may  do  this  by  demanding  the  services  of  its  subjects, 
or  by  levying  a  per-capita  tax  on  them,  or  by  taking 
from  them  whatever  property  it  needs.  All  methods 
are  unpopular  with  subjects,  who  never  pay  taxes  with 
cheerfulness  or  perform  forced  labor  for  the  state  with 
alacrity.  From  hard  experience  the  state  has  gradually 
learned  to  compromise  with  its  subjects,  and  now  regu- 
larly accepts  a  financial  equivalent  for  services  and  an 
annual  payment  for  the  support  of  the  government. 
But  in  case  of  necessity  the  state  does  not  hesitate  to 


ESSENTIAL   POWERS  OF   THE   STATE  65 

order  its  able-bodied  subjects  into  the  army  or  navy  or 
to  compel  them  to  assist  in  the  suppression  of  crime  or 
to  labor  on  public  works  or  in  the  public  service,  even 
without  compensation.  Nor  would  it  hesitate  under 
similar  circumstances  to  levy  forced  contributions  from 
the  wealthy,  nor  to  appropriate  to  its  own  use  supplies 
wherever  found,  nor  to  seize  any  land  needed  for  public 
use.  In  other  words,  the  sovereignty  of  the  state  implies 
a  virtual  ownership  of  the  services,  property  and  land  of 
its  subjects,  as  far  as  these  are  necessary  for  the  preserva- 
tion of  the  life  of  the  state.  The  decision  as  to  the  neces- 
sity of  all  this  lies  with  the  state  through  its  officials,  who 
are  restrained  by  constitutional  checks  or  by  the  fear  of 
rebellion  or  revolution. 

Forms  of  Taxation 

The  power  of  taxation  has  become  increasingly  bur- 
densome with  the  growth  of  the  scope  of  governmental 
activity,  since  the  state  in  exercising  its  supervisory  and 
administrative  powers  has  regularly  proved  to  be  an  ex- 
pensive necessity,  and  the  burden  of  taxation  has  too 
often  been  a  source  of  discontent  and  rebellion.  A 
state  best  shows  .its  wisdom  when  it  proves  able  to  raise 
an  income  that  will  at  once  support  the  government 
generously  and  yet  not  prove  burdensome  to  the  people. 
An  efficient  system  of  taxation  is  one  of  the  highest 
marks  of  statesmanship.  It  is  essential,  therefore,  that 
one  have  in  mind  a  brief  outline  of  the  numerous  forms 
and  methods  of  taxation  used  by  the  state  in  the  course 
of  its  development. 

Taxation  in  its  early  crude  forms  was  naturally  suited 


66  THE   DEVELOPMENT   OF   THE   STATE 

to  the  conditions  of  savage  or  barbarian  life.     As  war 

was  the  chief  and  almost  only  business  of  the  state,  its 

activity  was  intermittent.     Taxation  consisted 

Taxation  "^ 

through  in  a  demand  for  the  sei-vices  of  its  fighting 
service.        ^^^  ^^^  ^^^  ^^^  ^£  othcr  Capable  members  of 

the  community  for  purposes  of  advice,  defense  and  main- 
tenance. In  time  came  regulations  as  to  the  kind  of 
arms  and  the  amount  of  food  and  other  supplies  each 
should  furnish.  If  the  number  of  fighting  men  was  in 
excess  of  the  demand,  a  system  of  drafting  developed. 
The  state's  power  of  taxation,  then,  involved  its  right 
to  enroll  or  to  conscript  its  able-bodied  men  for  war  and 
to  demand  suitable  arms  and  supplies.  Other  govern- 
mental expenses,  if  a.nj,  were  met  by  the  chiefs  or  kings 
themselves,  who  considered  governmental  privileges  and 
responsibilities  personal  perquisites,  not  a  public  trust. 
Offerings,  gifts  and  tribute  from  subjects  and  subordi- 
nate communities  furnished  substantial  additions  to  pri- 
vate funds,  and  special  expense  might  be  met  by  foraj^s 
on  neighboring  enemies  or  by  confiscations  and  seizures. 
Public  lands,  also,  won  by  conquest  or  held  in  joint 
possession,!  often  furnished  a  large  source  of  revenue. 

As  the  state  grew  in  importance,  it  assumed  other 
functions  that  involved  men's  services.  Roads  and 
bridges  had  to  be  built  for  war  and  commercial  pur- 
poses; public  buildings,  such  as  temples,  palaces,  monu- 
ments and  fortresses  had  to  be  erected;  cities  founded, 
irrigating  canals  dug,  public  lands  cultivated  and  civic 
business   administered.     All    these    involved    taxation, 

^  For  example,  the  ager  publicus  of  Rome,  the  Crown  lands  of 
England  or  the  public  domain  of  the  United  States  of  America. 


ESSENTIAL   POWERS   OF   THE   STATE  67 

and  the  system  employed  was  similar  to  that  used  hi 
war.  All  able-bodied  men  might  be  forced  to  labor  or  a 
district  might  be  required  to  furnish  a  quota  or  a  tax 
might  be  levied,  from  the  proceeds  of  which  necessary 
public  work  would  be  performed.  In  earlier  systems  of- 
fice-holdmg,  like  other  services,  was  compulsory  and 
often  involved  irksome  toil  and  heavy  expense.  It  is 
only  in  modern  systems  that  the  emoluments  of  office 
cause  it  to  be  eagerly  sought.  As  class  distinctions  de- 
veloped, taxation  became  differentiated.  The  nobility 
held  office,  the  wealthy  paid  heavy  taxes  and  the  poor 
performed  services. 

A  definite  system  of  taxation  came  into  use  with  the 
rise  of  private  property  and  the  personal  ownership  of 
Taxation  ^ocks  and  tlic  products  of  agriculture.  Its  first 
of  prop-  form  was  the  levy  of  a  definite  per  cent  of  the 
^'^  ^'  produce  of  the  flocks  or  herds  or  of  the  fruits 

and  crops  of  the  land.  At  a  later  period  the  tax  on 
the  produce  of  land  was  transferred  to  the  land  itself. 
When  to  this  was  added  a  tax  on  property  fixed  to 
the  land,  e.  g.,  a  building,  we  have  the  modern  idea 
of  real  estate  as  distinct  from  movable  or  personal 
property.  Personal  services  were  gradually  comnmted 
for  other  forms  of  payment  and  are  now  rarely  de- 
manded except  for  purposes  of  war. 

In  farming  communities  personal  property  is  naturally 
small  in  amount  when  compared  with  real  property;  but 
the  rise  of  commerce  and  manufactures,  multiplying  this 
form  of  property,  resulted  in  the  development  of  newer 
forms  of  taxation.  Besides  the  direct  tax  on  personal 
property,  always  hard  to  estimate  and  to  collect,  came 


68      THE  DEVELOPMENT  OF  THE  STATE 

taxes  on  goods  sent  out  or  brought  into  a  country,  the 
modern  export  and  import  taxes.  Again,  a  tax  might 
be  levied  on  goods  manufactured  for  the  purpose  of  do- 
mestic sale,  the  excise  or  internal  revenue  tax;  or  on 
special  business  transactions,  as  a  stamp  tax;  or  on  oc- 
cupations, a  special  form  of  which  is  the  license  tax,  for 
permission  to  enter  on  a  business  which  from  its  nature, 
must  be  under  governmental  supervision,  such  as  the 
sale  of  liquors,  explosives  or  poisons.  A  common  but 
obnoxious  tax  is  the  poll  or  head  tax.  Income  and  in- 
heritance or  legacy  taxes  have  a  history  of  many  cen- 
turies. They  were  levied  in  the  classic  period  and  the 
latter  is  becoming  increasingly  popular.  ^  Taxes  on  cor- 
porations and  on  franchise  privileges  furnish  a  con- 
stantly increasing  revenue  for  the  state.  In  fact  the 
conditions  of  modern  business  life  are  so  different  from 
those  of  former  centuries,  that  national  systems  of  tax- 
ation are  undergoing  rapid  changes  and  are  constantly 
subject  to  revision  so  as  to  suit  newer  conditions  of 
economic  life. 

The  expense  of  government  is  so  influenced  by  the 
whims  and  private  interests  of  citizens  and  office-hold- 
ers, that  it  has  often  proved  difficult  to  balance 
budget.  expenditures  with  receipts.  Then,  too,  sudden 
emergencies  or  unusually  expensive  public 
works,  might  make  an  unexpected  deficit.  For  this  rea- 
son in  modern  states  a  budget  is  carefully  prepared  in  ad- 

^  For  late  (revised)  studies  of  these  two  forms  of  taxation,  see 
West,  "The  Inheritance  Tax,"  2d  ed.,  1908,  Columbia  Series;  Ameri- 
can Economic  Association  Quarterly,  Dec,  1908,  Seligman,  "Pro- 
gressive Taxation." 


ESSENTIAL   POWERS  OF  THE   STATE  69 

vance,  showing  possible  expenses  and  estimated  receipts 
and  indicating  changes  needed  in  taxation  so  as  to 
avoid  too  large  a  deficit  or  surplus.  In  less  scientific 
days,  in  case  of  special  emergency,  greater  reliance 
was  placed  on  forced  loans,  on  the  confiscation  of  the 
property  of  persons  charged  with  disloyalty,  of  wealthy 
corporations  like  the  church,  or  of  unpopular  foreigners 
like  wealthy  Jews.  Fees  from  petitioners  or  from 
litigation  furnished  a  large  source  of  revenue,  as  also 
the  income  from  the  sale  of  oflSce,  special  privileges 
or  monopolies,  or  from  the  debasement  of  the  coinage. 
Under  color  also  of  such  powers  as  maintenance, 
purveyance  and  emment  domain,  or  the  right  of  sei- 
zure in  time  of  war,  large  additions  to  revenue  could 
be  made  when  necessary.  All  such  irregular  forms 
are  passing  out  of  use,  and  seizure  of  any  sort  is 
now  regularly  accompanied  by  a  fair  compensation  to 
the  owner. 

Aside  from  the  difficulty  involved  in  settling  on  the 
kind  and  subject  of  taxation,  there  are  inherent  difficul- 
Assess-  *^^®  ^^  devising  efficient  systems  of  assessment 
mentand  and  collectiou.  The  old-fashioned  system  of 
"farming"  or  leasing  out  the  privilege  of  col- 
lecting taxes,  so  productive  of  tyrannical  abuses,  and  its 
counterpart  in  feudal  lordships  and  dues,  have  been 
superseded  by  elaborate  schemes  of  assessment  and  col- 
lection by  responsible  governmental  officials.  The  ideal 
of  a  fair  and  impartial  assessment  is  exceedingly  hard  to 
realize,  and  in  practice  the  burden  of  taxation  both  direct 
and  indirect,  is  proportionately  heavier  on  the  average 
person  of  small  property  and  income.    Such  evils  will 


70      THE  DEVELOPMENT  OF  THE  STATE 

slowly  disappear  as  a  more  intelligent  democracy  dic- 
tates the  policy  and  administration  of  government. 

Sovereign  Powers  in  Exercise 

The  state  in  the  exercise  of  its  powers  has  devoted 
most  of  its  energy  to  war  and  to  the  maintenance  of 
domestic  peace  and  economic  prosperity.  Yet  as  it 
assumed  authority  over  the  family  and  the  church,  it 
deprived  these  of  many  powers  formerly  under  their 
jurisdiction.  From  the  family,  for  instance,  it  assumed 
regulation  over  such  matters  as  kinship,  marriage  and  in- 
heritance; and  it  is  now  gradually  assuming  many  of  the 
functions  once  exercised  by  the  church,  such  as  educa- 
tion, the  administration  of  charity  and  the  regulation  of 
morality,  health,  art  and  amusements.  The  church  it- 
self also  has  in  modern  times  fallen  under  the  jurisdiction 
of  the  state,  and  its  organization,  and  at  times  even  its 
theology,  is  often  regulated  more  or  less  completely  by 
law. 

In  order  therefore  to  have  in  mind  the  trend  of  gov- 
ernmental activity,  some  attention  should  be  given  to 
the  development  of  each  of  these  fields  for  the  exercise 
of  sovereign  power.  ^ 

I.  The  War  Power  of  the  State 

The  original  sovereign  power  of  the  state  is  that  of 
war.  Even  now  a  state's  chief  business  is  to  be  ready 
for  war  and   to    wage   it    whenever    national    safety 

*  Good  illustrations  of  the  early  functioning  of  a  state  may  be 
found  in  Stubb's  "Constitutional  History  of  England,"  vol.  i,  and 
in  Gummere  (s»e  Bibliography), 


ESSENTIAL  POWERS  OF  THE   STATE  71 

or  national  interests  demand  it.  In  modern  times 
diplomacy  is  becoming  increasingly  important  as  a  means 
whereby  dangerous  disputes  may  be  adjusted 
peace^"  and  treaties  for  offense  and  defense  negotiated. 
In  a  rude  civilization  a  formal  notification 
of  war  is  not  deemed  necessary;  each  state  seeks  to 
attack  its  rival  unawares  and  when  the  latter  is  poorly 
prepared.  In  more  developed  states  a  formal  notifica- 
tion is  common,  though  diplomatic  negotiations  usually 
supply  the  information  long  in  advance  of  the  formal 
proclamation.  In  theory  no  state  declares  war  or  makes 
peace  without  the  consent  of  the  dominant  interests  or 
classes  within  the  state.  In  practice  this  power  has  to 
be  confided  to  the  head  of  the  state  in  order  that  no  time 
may  be  lost  in  case  of  emergency.  The  head  of  the 
state,  however,  is  always  in  touch  with  the  leaders  in 
national  affairs  and  is  advised  by  them.  These  domi- 
nant interests  vary  with  the  economic  development  of 
the  state.  At  first  they  were  voiced  by  the  elders  and 
war  leaders  of  the  horde,  then  by  the  heads  of  families 
in  early  patriarchal  times,  at  a  still  later  stage  by  the 
heads  of  all  important  clans  and  families,  together  with 
men  eminent  for  past  services  in  war.  When  commer- 
cial states  developed,  the  possession  of  large  wealth, 
whether  personal  or  landed,  gave  the  owner  a  voice  in 
council.  To  the  voice  of  these  has  been  added  the  will 
of  the  people  as  a  whole,  made  known  through  their 
delegates.  Rarely  would  a  modern  state  venture  to 
declare  war  or  make  peace  without  the  hearty  accord  of 
pu])lic  opinion  formally  or  informally  expressed. 
All  able-bodied  men  by  theory  must  serve  in  the  army 


72  THE   DEVELOPMENT   OF   THE   STATE 

or  navy.  If  war  is  always  imminent  the  theory  becomes 
fact;  all  men  are  given  a  military  training  and  a  suf- 
ficient number  kept  in  readiness  for  immediate  ser- 
service  vicc.  If  a  State  is  so  situated  as  not  to 
in  the         f g^p  y^^j.   j^  (^Qgg  j-^Q^  enforce  military  service 

army  or  '  -^ 

navy.  aud  depcuds  on  volunteers  in  cases  of  emer- 

gency. Occasionally  a  small  standing  army  is  main- 
tained as  a  nucleus  about  which  a  larger  army  may  be 
formed.  In  tribal  states  petty  wars  were  fought  by 
volunteers  who  delighted  in  the  excitement  of  battle; 
larger  wars  demanded  the  services  of  all  the  men  of  the 
tribe.  In  the  stage  of  developing  confederation  or  feu- 
dalism, each  district  sent  its  quota  for  a  common  war. 
In  modern  times  the  state  keeps  a  permanent  paid  army 
in  its  service,  and  supplements  the  services  of  these  by 
drafts  of  men  levied  from  districts  in  proportion  to 
population. 

States  in  times  of  stress  have  used  slaves  in  war,  but 
always  under  protest,  fighting  being  considered  the 
privilege  and  the  duty  of  freemen.  Convicts  and 
criminals  occasionally  have  been  sentenced  to  serve  as 
a  punishment,  but  this  custom  is  now  condemned  as 
derogatory  to  the  service.  Occasionally  states  have 
hired  foreign  mercenaries  to  fight  in  their  wars,  but  this 
custom  also  is  no  longer  favored. 

The  burden  of  supplying  ships  and  men  for  the  navy 
used  to  fall  on  seaport  communities  onjy;  gradually  a 
permanent  navy  developed,  supported  by  the  state  and 
supplemented  by  privateers  and  by  vessels  seized  or 
bought  at  the  outbreak  of  war.  The  use  of  privateers 
is  now  practically  condemned  by  all  leading  nations. 


ESSENTIAL   P0WP:RS  OF  THE   STATE  73 

Commercial  states  using  the  sea  support  large  navies  so 
as  to  protect  their  commerce  in  case  of  war. 

Positions  of  command  regularly  belong  in  old-fash- 
ioned systems  to  men  of  the  higher  social  classes,  with 
occasional  exceptions  in  the  case  of  men  of  decided 
talent  who  may  rise  from  the  ranks.  The  present  tend- 
ency is  to  make  all  positions  of  command  open  to 
merit,  and  this  system  holds  in  democratic  states.  The 
training  of  men  for  war  was  in  early  times  the  duty  of 
the  older  experienced  warriors.  At  a  later  period  the 
family  and  the  community  respectively  trained  their 
members.  At  the  present  time  the  state  either  directly 
trains  its  forces  or  fixes  standards  and  supervises  ad- 
ministrative districts  in  the  performance  of  this  duty. 
Scientific  technical  training  is  also  furnished  by  the  state 
for  the  officers  of  the  army  and  navy. 

In  earlier  systems  armies  subsisted  by  foraging  or 
plundering  along  the  line  of  march,  each  man  furnishing 
his  own  equipment,  according  to  a  set  standard.  In  this 
case  the  wealth  of  a  person  determined  the  branch  of 
service  he  entered;  the  wealthier  served  in  the  cavalry 
or  in  the  heavy-armed  troops,  and  the  poorest  as  light- 
armed  trooj^s.  The  expensiveness  of  modern  equip- 
ment and  the  great  size  of  armies  compel  states  to 
furnish  all  supplies  of  weapons,  equipment,  food,  med- 
icines and  other  necessaries.  The  branch  of  service 
entered  is  determined  by  skill  and  choice.  The  sci- 
ence of  war  has  become  so  systematized  that  immense 
sums  are  annually  expended  in  the  building  of  mili- 
tary roads  and  fortifications  and  in  the  accumula- 
tion of  all  kinds  of  military  and  naval  stores.     Nat- 


74  THE   DEVELOPMENT   OF   THE   STATE 

urally  there  is  a  definite  system  of  rules  and  regu- 
lations which  govern  the  military  and  naval  forces  of 
a  nation,  but  in  democratic  states  these  codes  are 
formulated  by  the  lawmaking  body  so  as  to  render  the 
military  subordinate  to  the  civil  department  of  gov- 
ernment. 

In  earlier  political  life  warring  communities  fought 
until  the  one  or  the  other  was  exterminated  or  both, 
from  exhaustion,  were  compelled  to  desist. 
Gradually  a  rude  method  of  negotiation  grew 
up  through  heralds,  whose  persons  while  in  the  perform- 
ance of  their  duties  were  sacred.  Through  these,  treaties 
and  agreements  were  made  and  sanctioned  with  much 
ceremony  and  the  taking  of  oaths.  Even  in  very  early 
times  formal  treaties  were  made.  One  of  the  earliest  ex- 
tant dates  back  to  the  thirteenth  century  B.C.,  being  a 
treaty  between  Rameses  II  and  the  Kheta  or  Hittites.^ 
In  the  middle  ages  began  the  custom  of  sending  perma- 
nent diplomatic  agents  to  the  courts  of  those  nations  with 
which  the  state  had  dealings;  through  these  much  in- 
formation was  secured  of  great  use  to  the  respective 
states,  and  disputes  settled  without  war.  Then  began 
consular  systems  whereby  each  state  sends  business 
agents  to  the  chief  business  centers  of  other  states, 
usually  seaports,  and  through  these  secures  information 
of  great  value  for  commercial  interests.  These  agents 
also  transact  important  details  of  administrative  busi- 
ness for  travelers  and  traders. 

The  last  important  development  has  been  the  employ- 
ment of  Boards  of  Arbitration,  Joint  Commissions,  In- 
'  "Records  of  the  Past,"     First  Series,  vol,  iv,  pp.  25-32. 


ESSENTIAL   POWERS   OF   THE   STATE  75 

ternational  Congresses  and  Tlie  Hague  Tribunal.  These 
consider  such  matters  as  may  be  referred  to  them,  hear 
arguments  on  all  sides  and  settle  amicably  disputes 
that  otherwise  would  frequently  end  in  war. 

In  western  civilization  the  customs  arising  from  this 
international  intercourse  did  not  attain  an  important 
Inter-  stagc  Until  the  sixteenth  century,  when  the 

national  development  of  national  states  and  greater  in- 
tercourse through  the  development  of  com- 
merce brought  them  into  prominence.  Grotius  in  his 
work,  "De  jure  belli  et  pacis"  ^  first  systematized  these 
customs  by  commenting  on  them  and  supplementing 
them  from  principles  of  Roman  and  natural  law.  Smce 
his  day  many  learned  treatises  on  these  customs  and  prin- 
ciples have  been  set  forth,  resulting  in  a  fairly  well-de- 
fined code  or  set  of  rules  and  regulations  for  the  guid- 
ance of  nations  in  their  intercourse  one  with  the  other. 
These  are  not  law  in  the  sense  that  they  are  customs, 
regulations  or  commands  enforced  by  a  supreme  sover- 
eign authority.  Though  called  international  law,  the 
term  should  be  understood  in  the  sense  that  the  code 
is  a  collection  of  the  customs  observed  by  the  greater 
states  m  their  dealings  with  one  another.  No  state  is 
legally  bound  to  obey  these,  but  all  states  for  expedi- 
ency's sake  usually  conform  to  them,  though  they  do 
not  hesitate  to  disregard  or  alter  them  in  certain  partic- 
ulars if  it  seems  wise. 

Tlie  early  method  of  disposing  of  conquered  communi- 
ties was  that  of  devastation.  Torture  and  death  were 
the  fate  of  the  males,  slavery  the  lot  of  the  women 
«  First  published,  1625. 


76      THE  DEVELOPMENT  OF  THE  STATE 

and  children.  At  a  later  stage  after  a  partial  slaugh- 
ter, the  remaining  members  of  the  conquered  com- 
munity were  enslaved  and  kept  permanently  in  social 
Govern-  Subordination,  A  third  stage  came  when  the 
mentof       couQuered  community  was  compelled  to  pay 

conquered  •■■  "^  i.  l     j 

provinces,  tribute  to  the  conqueror,  and  to  submit  to  his 
supremacy  in  governmental  matters,  but  otherwise  was 
allowed  to  retain  its  freedom  and  peculiar  customs.  ^  At 
the  present  time  in  wars  between  civilized  states,  the 
conqueror  usually  imposes  on  the  conquered  a  heavy 
tax  for  war  expenses,  makes  stipulations  in  regard  to  the 
causes  of  the  war  and  may  demand  a  cession  of  territory. 
In  the  last  case  there  seems  to  be  a  tendency  for  the  con- 
queror to  compel  such  ceded  territory  to  conform  more 
or  less  completely  to  the  civilization  of  the  successful 
state,  e.  g.,  Poland,  Alsace-Lorraine,  the  Dutch  Repub- 
lics of  South  Africa,  Finland,  Porto  Rico  and  the  Phil- 
ippines. This  last  development  is  not  in  harmony  with 
the  principle  of  nationality  which  has  obtained  in  west- 
ern civilization  since  the  sixteenth  century.  This  prin- 
ciple declares  that  every  race  having  a  civilization  and 
interests  peculiar  to  itself  should  also  have  autonomy  in 
government.  The  attainment  of  the  unity  of  Italy  and 
German}^  in  the  nineteenth  century  and  the  periodic 
racial  troubles  in  Austria-Hungary  and  southeast  Eu- 
rope illustrate  the  principle.  The  theory  of  "dominant 
races"  seems  to  be  gaining  ground  at  present.  This  the- 
ory, plainly  stated,  is  that  any  powerful  state  may  by 

*  See,  for  example,  "Roman  System  of  Provincial  Administra- 
tion," W.  T.  Arnold,  1879,  London.  Ccesar's  "Wars"  furnish  many- 
illustrations  of  early  methods. 


ESSExXTIAL   POWERS  OF  THE   STATE  77 

open  conquest  or  skilli'ul  diplomacy  subdue  weaker  and 
inferior  races  and  states  and  compel  them  to  assimilate 
their  customs  to  those  of  the  ruling  state.  A  war  for 
pure  aggrandizement  probably  would  not  be  tolerated 
by  other  great  powers,  but  a  dominant  state  seldom 
lacks  an  excuse  for  aggression.  A  consequence  of  this 
theory  is  that  a  weaker  community  which  cannot  or 
will  not  become  assimilated  disappears.  As  a  rule  if  the 
conquered  community  is  equal  in  quality  to  the  con- 
queror, assimilation  takes  place  at  last,  though  with 
much  bitterness  and  rancor.  If  such  a  community  is 
inferior  in  quality,  j'^et  such  that  it  can  be  utilized  in 
economic  life,  it  survives  because  of  its  industrial  value 
and  may  perhaps  very  slowly  amalgamate  with  the  con- 
quering race.  If  such  a  community  proves  to  be  socially 
inferior  and  economically  useless,  its  members  slowly 
disappear,  wasted  by  contact  with  a  superior  civilization 
whose  vices  and  diseases  find  ready  lodgment  in  a  pop- 
ulation that  has  lost  its  self-respect  and  its  reason  for 
existence.  This  process  of  conquest  and  assimilation, 
harsh  and  cruel  though  it  be,  has  nevertheless  been  in 
the  past  one  of  the  greatest  factors  in  civilization.  A 
race  developing  only  through  natural  increase  tends  to 
lose  energy  and  vitality  by  inbreeding.  Conquest  in- 
volves more  or  less  intermarriage  between  the  con- 
querors and  the  conquered  and  a  slow  process  of  amal- 
gamation takes  place.  From  this  crossing  of  blood 
and  mingling  of  civilizations  a  new  generation  ulti- 
mately arises,  stronger  and  wiser  than  either  of  its 
parent  stocks.  Every  important  race  surviving  to- 
day must  in  its  history  have  been  repeatedly  subject 


78  THE   DEVELOPMENT   OF   THE   STATE 

to  processes  of  amalgamation.*  Peaceful  amalgama- 
tion is  prominent  to-day  through  immigration.  The 
racial  safeguard  in  amalgamation  is  that  a  superior 
race  seldom  amalgamates  with  a  race  much  inferior  to 
itself.  Extinction  not  absorption  is  the  ultimate  fate 
of  the  latter. 

The  rapid  development  of  international  comity  in 
modern  times  brings  into  discussion  the  question  of  the 

future  probability  of  a  world  state,  a  world 
Future  of     federation.     It   seems  undeniable  that  many 

centuries  hence  such  a  consummation  is  possi- 
ble. Development  along  such  lines  is  already  manifest, 
as  illustrated  (1)  by  the  growing  identity  of  social  and 
economic  interests  brought  about  by  constant  inter- 
course through  modern  inventions,  (2)  by  the  develop- 
ment of  mternational  law,  comity  and  arbitration,  (3) 
by  the  development  of  common  administration  in  such 
matters  as  postal  service,  (4)  by  the  practical  suprem- 
acy of  four  or  five  leading  states  over  the  world's  terri- 
tory and  (5)  by  the  growing  human itarianism  of  the  age. 
All  these  seemingly  point  to  a  peaceable  amalgamation 
of  the  human  race  under  the  supremacy  of  a  developing 
confederation  of  leading  states.  On  the  other  hand  it  is 
questionable  whether  these  dominant  nations  will  con- 
clude to  divide  the  world's  supremacy  among  them  in 
an  amicable  manner.     These  states  are  economic  rivals, 

^  This  theory  has  been  best  worked  out  by  Ludwig  Gumplowicz, 
"Der  Rassenkampf,"  and  "Grundriss  der  Sociologie."  This  latter 
volume  has  been  translated  by  F.  W.  Moore,  1899,  Annals,  Phila. 
Note  also  article  by  Mayo- Smith,  mentioned  in  list  at  end  of 
Chapter  I. 


ESSENTIAL   POWERS  OF   THE   STATE  79 

and  experience  shows  that  economic  rivalry  is  usually 
settled  by  war.  It  may  be  that  the  tendencies  wliich 
make  for  peace  will  develop  a  peaceable  federation  or 
the  submission  of  the  rest  to  the  hegemony  of  one,  but 
the  probabilities  hardly  point  in  that  direction.  West- 
ern civilization  is  characterized  by  a  fierce,  warlike,  com- 
petitive spirit  that  brooks  no  rivals  in  a  contest  for  eco- 
nomic supremacy.  The  most  peaceable  classes  in  any 
community  are  those  engaged  hi  religious  and  in  com- 
mercial life,  but  they  regularly  and  heartily  favor  every 
war  for  supremacy.  The  cost  of  war,  the  growing  liu- 
manitarianism  of  the  age  and  the  enormous  loss  of  life 
involved  in  modern  struggles  are  deterrent  factors,  but 
these  sink  away  when  the  lust  for  gain  and  warring  seizes 
by  contagion  an  entire  nation. 

Again,  a  world  state  or  federation  would  be  strong 
only  as  its  subjects  were  homogeneous  in  civilization  and 
fairly  well  amalgamated  in  blood,  \\nien  one  reflects 
that  by  far  the  larger  part  of  humanity  live  under  back- 
ward civilizations  and  in  tropical  or  semitropical  lands, 
it  becomes  evident  that  amalgamation  by  blood  would 
demand  thousands  of  years  not  centuries,  and  that  a 
mingling  of  such  dissimilar  civilizations  is  hardly  possi- 
ble. If,  however,  dominant  states  should  hold  such 
populations  in  subjection,  as  England,  for  example, 
does  India,  and  develop  them  in  civilization  as  rap- 
idly as  possible,  a  firm  and  lasting  unity  might  be 
secured  that  ultimately  would  become  democratic.  It 
may  be  that  the  future  has. some  such  solution  in  store 
for  humanity.  If  so,  then  the  dream  of  many  Utopians 
may  be  realized,  and  humanity  guided  by  a  world  policy 


80  THE   DEVELOPMENT   OF   THE   STATE 

may  systematically  utilize  social  agencies  for  the  highest 
possible  development  of  the  human  race.  Indications 
along  such  lines  will  be  much  clearer  by  the  end  of  the 
twentieth  century,  for  civilization  having  passed  round 
the  world  is  centering  its  energies  in  the  western  hemi- 
sphere and  in  the  far  East.  The  lands  bordering  on  the 
Pacific  will  grow  in  importance  during  this  century,  and 
by  the  end  of  it  the  dense  populations  of  China  and  India 
will  probably  have  found  their  place  in  the  politics  of  the 
modern  world. 

II.  The  Preservation  of  Domestic  Peace 

As  the  primary  function  of  the  state  is  the  protection 

of  the  lives  and  property  of  the  community  through  war, 

it  is  not  strange  that  a  similar  function  in  in- 

regulation    tcmal  affairs  should  develop.    State  authority 

of  crime.         •  i  ^^  i  i 

m  such  matters,  however,  grew  much  more 
slowly.  Long  before  the  state  existed  men  had  protected 
themselves  and  still  felt  abundantly  able  to  do  so  i©  or- 
dinary emergencies.  In  all  civilizations,  groups  of  men 
are  found  united  in  bonds  of  real  or  fictitious  kinship 
for  purposes  of  joint  protection. ^  How  instinctive  this 
has  become  is  seen  at  a  glance  by  observing  the  numerous 
fraternal  orders  of  developed  civilization.  These  groups 
in  early  civilization  were  united  for  purposes  of  blood 
revenge,  fine  payments  and  mutual  responsibility.  The 
patriarchal  family  at  a  later  stage  answered  the  same 
purpose.  The  loosening  of  patriarchal  family  ties  through 
commerce  and  industry  brought   about  in  city  life  the 

*  For  illustrations,  see  Hutton  Webster,  "Primitive  Secret  Socie- 
ties," 1908. 


ESSENTIAL   POWERS   OF   THE  STATE  81 

development  of  the  guild,  ^  the  guild  for  social  and  re- 
ligious purposes,  the  trades  guild,  the  merchant  guild, 
and  akin  to  these  the  orders  of  knighthood  and  the  broth- 
erhoods of  the  church.  Such  associations,  found  in  all 
civilizations  and  in  all  times  and  places,  devoted  them- 
selves to  the  preservation  of  the  peace  by  restraints 
placed  on  individual  members,  by  discipline  inflicted  on 
disturbers  of  the  peace,  and  by  presenting  a  united  front 
against  aggressions  of  unruly  members  of  the  community. 
But  besides  associations  for  the  preservation  of  the 
peace  there  were  others  organized  for  opposite  purposes, 
associations    composed    of    outlaws,   robbers, 

Suppression  '■  '  ' 

of  criminals  who  had  fled  from  home,  men  own- 

outawry.      .  mastcr,  worthless  fellows  for  whom  no 

one  would  be  responsible.^  Against  such  the  united 
strength  of  the  entire  comnmnity  was  necessary.  The 
state  therefore  developed  the  function  of  unifying  the 
force  of  the  community  against  armed  associations  of 
lawless  men  within  its  own  borders.  Similarly,  armed 
resistance  to  the  laws  of  the  community  in  the  form 
of  rebellions,  insurrections  and  riots,  was  suppressed 
through  the  power  and  strength  of  the  state.  In  this 
way  developed  the  right  of  the  state  to  suppress  such 
disturbances  with  a  strong  hand,  if  necessary  suspending 
civil  law  for  the  time  and  exercising  arbitrary  war  pow- 
ers. 
Ordinary  breaches  of  the  peace  long  remained  outside 

•*  For  special  studies  of  guilds,  see  articles,  Yale  Review,  vol.  i, 
pp.  200  and  275,  F.  W.  Williams,  "Chinese  and  Mediaeval  Gilds," 
and  vol.  vii,  pp.  24  and  197,  W.  E.  Hopkins,  "Ancient  and  Modern 
Hindu  Gilds." 

^  See  e.  g.,  The  Cave  of  Adullam,  I  Samuel  xxii,  2. 


82  THE   DEVELOPMENT  OF   THE   STATE 

the  jurisdiction  of  the  state,  and  even  now  some  of- 
fenses against  the  peace  are  popularly  considered  mat- 
ters to  be  settled  personally,  such  as  offenses  against 
honor,  chastity,  reputation  and  the  person.     This  may 

be  illustrated  by  such  survivals  of  private 
tti"  peace °^  veugcance  as  the  fisticuff  brawl  of  humble  life, 

the  duel  of  socially  higher  classes,  the  use  of 
lynch  law  administered  by  outraged  individuals  or  com- 
munities, Ku-Klux  organizations  and  the  feuds  still  so 
common  in  backward  countries  or  semi-patriarchal  com- 
munities. Likewise  certain  social  agencies  are  still  accus- 
tomed to  exercise  slight  powers  of  discipline  over  their 
membership  as,  for  instance,  the  family,  the  school  and 
the  church.  Another  illustration  is  the  system  of  ostracism 
practiced  in  social  life  against  violators  of  customary  rules 
of  etiquette.  All  such  offenses  were  once  legally  avenged 
by  the  persons  offended,  supported  by  the  kinsmen  of 
the  fraternity  or  family.  If  one  slew  another,  the  friends 
of  the  murdered  man  slew  the  murderer  or  one  of  his  kin. 
If  injury  less  than  life  was  inflicted,  similar  injuries  were 
given  in  retaliation.  This  lex  talionis,  or  principle  of  eye 
for  eye,  tooth  for  tooth,  had  one  extremely  inconvenient 
consequence:  it  was  likely  to  develop  into  a  blood  feud. 
Blood  feuds  kept  the  whole  community  in  turmoil,  be- 
sides robbing  the  state  of  many  of  its  best  fighting  men. 
Under  sucK  conditioru^  the  state  assumed  the  office  of 
umpire,  examined  the  facts  in  the  case,  turned  over  the 
guilty  person  to  his  prosecutors  for  punishment  and  for- 
bade the  friends  of  the  convicted  person  to  carry  the 
matter  further.  These,  debarred  from  the  privilege  of 
avenging  their  kinsman,  sought  the  privilege  of  redeena- 


ESSENTIAL   POWERS  OF   THE   STATE  83 

ing  his  life  by  payments.  Such  a  compromise  in  most 
cases  proved  eminently  satisfactory  to  all  parties.  Bet- 
ter pay  a  fine  than  lose  a  friend,  and  on  the  other  hand 
a  fine  received  is  some  compensation  for  the  loss  of  a 
friend,  and  perhaps  more  satisfactory  than  blood  re- 
venge. The  state  was  also  satisfied,  because  men  that 
kill  in  fight  make  good  soldiers  in  war,  and  war  material 
of  that  sort  was  too  valuable  to  waste  through  useless 
bloodshedding. 

In  some  such  way  developed  a  system  of  fines  graded 
for  almost  every  possible  offense  against  the  person, 

from  a  life  to  a  tooth  or  a  lock  of  hair,  and 
ofSs™      varying  in  amount  with  the  social  standing  of 

the  person  assaulted.^  These  fines  were  paid 
to  the  injured  person,  or  to  his  kin  or  fraternity,  but  the 
state  reserved  a  fraction  of  the  fine  for  its  services  as  um- 
pire. The  income  from  such  fines  proved  so  remunerative 
to  the  state,  that  there  was  a  constant  tendency  to  usurp 
the  function  of  the  prosecutor,  whose  business  it  was 
to  present  the  criminal  for  trial,  and  to  claim  an  increas- 
ing share  of  the  fines.  The  matter  was  settled  at  last  by 
the  state's  assumption  of  the  entire  matter.  WHien  a 
crime  takes  place,  the  state  arrests  the  accused,  makes 
all  investigations,  prosecutes  the  case,  inflicts  the  pun- 
ishment and  collects  the  whole  of  the  fine.  The  early 
pecuniary  motive  of  the  state  has  however  overreached 
itself,  for,  in  the  development  of  punitive  law,  other 
forms  of  punishment,  such  as  imprisonment,  have  been 

*  For  a  good  illustration  of  such  a  system,  see  John  M.  Stearns, 
"Germs  and  Development  of  the  Laws  of  England,"  1889,  New 
York. 


84  THE   DEVELOPMENT   OF   THE   STATE 

substituted  for  fines  in  many  offenses,  and  the  income 
of  the  state  has  correspondingly  diminished,  while  the 
expense  of  administering  punishment  has  enormously 
increased.  Neither  the  injured  person  nor  his  kin  now 
share  in  the  fine  but  merely  have  the  doubtful  satisfac- 
tion of  seeing  punishment  inflicted  on  the  offender.  By 
theory  a  civil  process  for  damages  is  possible,  but  in  prac- 
tice, useless.  There  are  movements  in  some  countries 
looking  to  the  enactment  of  a  law  requiring  the  state  to 
indemnify  the  injured  person  or  his  kin,  on  the  theory 
that  the  state  agrees  to  preserve  the  peace,  and  if  it  fails 
to  do  so  in  any  case,  it  should  pay  a  penalty  for  its 
neglect.^ 

The  state  in  the  development  of  its  functions  of  arbi- 
tration and  punishment,  has  tried  many  curious  experi- 
.g  ^j    ments.     The  city  of  refuge  represents  an  at- 
punish-        tempt  to  distinguish  between  intentional  and 
™^°  ■  unintentional  murder.    The  use  of  the  sanctu- 

ary is  a  device  for  the  prevention  of  punishment  in- 
flicted without  proper  consideration.  The  ordeal  and 
the  judicial  combat  endeavored  to  throw  the  responsi- 
bility of  the  decision  on  God.  The  system  of  compurga- 
tion allowed  the  state  to  decide  prudently  on  the  side 
that  could  present  more  able-bodied  men  ready  to  swear 
to  anything  to  help  out  a  friend  (a  system  not  unknown 
at  this  day).  Torture  was  regularly  applied  on  the  the- 
ory that  a  man  in  great  pain  will  tell  the  truth.  Finally, 
excessively  cruel  and  hideous  forms  of  death  were  in- 
flicted on  the  guilty  under  the  theory  that  others  would 
be  deterred  from  similar  offenses.  Such  systems  of  pun- 
'  See  6.  g.,  Ferri,  Chapter  III. 


ESSENTIAL   POWERS  OF  THE   STATE  85 

ishnicnt  now  survive  only  in  uncivilized  communities, 
and  modern  ]3enology  is  founded  on  humane  principles. 

A  similar  development  of  state  authority  took  place 
in  respect  to  offenses  against  property.  For  a  long 
Regulation  pcriod  theft  was  considered  to  be  purely  a  pri- 
agai^nT^  ^^^^  matter  and  was  settled  by  methods  of 
propeity.  retaliation.  The  injured  party  would  naturally 
seek  to  recover  from  the  offender  or  his  kin  more  than 
he  had  lost,  so  as  to  recompense  him  for  his  trouble. 
This  brought  about  bad  feeling,  fighting  and  occasional 
loss  of  life.  As  in  the  case  of  personal  violence,  the 
state  at  first  acted  as  umpire  and  settled  guilt  and  dam- 
ages, taking  its  share  of  the  latter.  It  then  gradually 
assumed  entire  responsibility  in  the  matter,  and  now 
merely  returns  to  the  robbed  person  his  property  if 
recovered. 

The  modern  state  in  exercising  its  jurisdiction  over 
crime  of  all  sorts  is  not  satisfied  merely  to  detect  and 
punish  the  offender,  but  seeks  to  prevent  the  commission 
of  crime  (1)  by  carefully  framing  and  publishing  the 
penal  law,  in  order  that  no  one  may  plead  as  an  excuse 
ignorance  of  the  law,  and  (2)  by  the  use  of  a  permanent 
police  force,  which  systematically  patrols  the  community 
and  seeks  to  prevent  disorder  and  crime.  Even  more  is 
accomplished  in  this  direction  by  wise  systems  of  educa^- 
tion  and  economic  regulation. 

The  next  development  took  place  when  the  state 
undertook  to  arbitrate  in  civil  disputes.  Disagreements 
in  regard  to  property  rights  easily  lead  on  to  acts  of 
violence.  The  state,  therefore,  in  maintaining  its  func- 
tion of  keeper  of  the  peace,  gradually  assumed  juris- 


86  THE   DEVELOPMENT   OF  THE   STATE 

diction  over  such  disputes  by  compelling  the  contend- 
ing parties  to  plead  their  causes  before  its  magistrate 
„     ,  ^       and  to  submit  to  his  decision.     In  such  cases, 

Regulation  ...      . 

of  civil         however,  the  state  seldom  takes  the  initiative, 
ispu  es.       ^^^  ^.^^  actions  are  still  in  form  disputes  be- 
tween persons,  while  criminal  actions  are  in  form  charges 
made  by  the  state  itself  against  individuals. 

In  this  development  of  governmental  authority  the 
process  is  practically  uniform:  in  primitive  life  disputes 
^^^  of  all  sorts  are  settled  by  private  arrangements 

natural  of  the  parties  concerned,  peaceably  or  vio- 
process.  jgn^iy^  according  to  circumstances  or  the  na- 
ture of  the  case.  Then  the  state  from  motives  of  public 
policy  assumes  the  office  of  voluntary  umpire;  at  a  later 
stage  it  enforces  with  the  power  of  the  state  its  decisions, 
and  finally  it  either  compels  disputants  to  refer  their 
grievances  to  its  courts,  or  it  assumes  the  responsibility 
of  personally'  investigating  grievances  and  prosecuting 
and  punishing  offenders. 

This  process  may  be  illustrated  by  the  modern  strike.^ 
This  is  in  form  a  private  dispute  between  an  employer 
and  his  men  in  regard  to  the  economic  policy  of  the  firm 
or  corporation.  If  the  strike  should  become  so  impor- 
tant as  to  threaten  violence  or  serious  danger  to  public 
interests,  the  state  may  suggest  the  use  of  a  board  of 
arbitration,  as  was  done  in  the  coal  strike  of  1902.  At 
a  later  period  the  state  may  insist  that  such  disputes  be 
referred  to  a  board  of  arbitration  and,  finally,  may  then 

*  For  excellent  discussions  of  the  strike,  see  John  Graham  Brooks, 
1'  The  Social  Unrest,"  1903,  and  F.  J.  Stimson,  "Handbook  to  the 
Labor  Law  of  the  United  States,"  1896. 


ESSENTIAL   POWERS  OF   THE   STATE  87 

enforce  the  decision  of  the  board.  In  this  way  in  mat- 
ters still  left  for  private  settlement  the  state  may 
organize,  as  is  so  commonly  the  case,  courts  or  boards  of 
arbitration  and  conciliation,  the  use  of  which  may  be 
voluntary  at  first,  but  may  ultimately  be  made  com- 
pulsory as  the  state  extends  its  jurisdiction  over  all  dis- 
putes that  threaten  to  disturb  the  public  peace. 

SPECIAL  REFERENCES 

Taxation:  Dowell,  Seligman,  D.  A.  Wells. 

Police  Power:  Freund,  and  Russel. 

Law  in  Relation  to  Crime:  Boies,  Cutler,  Ferrf,  Hall;  and 

Inderwick. 
War:  Bloch.     For  American  diplomacy,  Hart,  "Handbook"; 

John  Bassett  Moore.    For  European  diplomacy,  Hill. 

For  a  brief  text-book  on  International  law,  Wilson  and 

Tucker. 


CHAPTER  V 

ESSENTIAL   POWERS   OF   THE   STATE 
(Continued) 

III.     Economic  Regulation 

It  will,  of  course,  be  impossible  in  an  elementary 
study  to  trace  the  development  of  all  the  power  and 
activity  of  the  state  in  the  regulation  and  control  of 
economic  life.  It  will  be  sufficient,  perhaps,  to  indicate 
in  a  general  way  what  has  been  the  attitude  of  the  state 
toward  the  chief  factors  in  economic  progress. 

The  Ownership  of  Land 

The  possession  of  abundant  territory  is  the  foremost 
economic  necessity  for  a  state.     From  the  land  human 

beings  derive  their  chief  supply  of  food  and 
originauy     without  land  no  permanent  state  can  exist. 

From  the  earliest  times,  therefore,  states  have 
had  to  devote  especial  attention  to  the  acquisition  and 
defense  of  territory.  Whatever  claim  a  comnmnity 
might  have  to  land  depended  at  first  entirely  on  posses- 
sion and  use.  The  strong  hand,  nen^ed  by  the  necessity 
of  securing  a  livelihood,  was  the  only  form  of  title  deed 
recognized.  ^\Tiat  a  community  needed  for  hunting, 
grazing  or  agricultural  purposes  it  used,  defending  its 
right  by  main  strength  against  intruders.  If,  at  a  later 
time,  a  community,  necessitated  by  natural  increase  of 

88 


ESSENTIAL   POWERS  OF   THE   STATE  89 

population,  found  itself  restricted  in  food  supplies,  it 
would  either  increase  its  boundaries  by  war  on  weaker 
neighbors,  sending  out  colonies  of  fighting  men  to  win 
and  hold  the  land,  or  would  abandon  its  old  location  and 
seek  a  new  one.  In  so  doing  it  made  no  attempt  to  sell 
the  old  nor  to  buy  the  new.  It  seized  whatever  territory 
it  needed,  exterminating  or  driving  before  it  the  inhabi- 
tants of  the  land.  The  invasion  of  Canaan  by  the 
Israelites  and  the  migration  of  the  Helvetians  as  nar- 
rated by  C&sar  illustrate  the  process. 

Occasionally  communities  sought  to  acquire  o\\Tier- 
ship  in  much  more  territory  than  it  was  possible  to 
utilize.  This  might  be  due  to  forethought  in  anticipa- 
tion of  future  growth  of  population  or  to  land  hunger, 
the  desire  to  own  land  irrespective  of  its  immediate  or 
even  prospective  utilization.  ^  Manifestly  such  claims 
could  be  maintained  only  through  force  or  in  the  absence 
of  opposition.  The  same  condition  practically  obtains 
at  present.  States  define  their  boundary  lines  at  times 
out  of  all  proportion  to  the  possible  needs  of  their  popu- 
lations. But  it  is  fairly  well  understood  in  world  poli- 
tics that  a  state  asserting  a  claim  to  lands  which  it  can- 
not possibly  use,  holds  them  only  as  long  as  it  can  defend 
them  agamst  other  claimants  eager  to  utilize  the  terri- 
tory. States  in  their  relations  one  with  another  tacitly 
assume  that  the  capacity  to  utilize  furnishes  a  fairly 
good  title  against  ownership  without  use.  As  a  corollary 
to  this  arises  the  theory  that  the  nation  that  can  best 
use,  has  a  better  right  to  land  than  a  nation  which  mis- 

'  See  e.  g.,  Caesar's  account  of  the  Suevi,  Gallic  War,  Book  IV, 
Chapter  III, 


90  THE   DEVELOPMENT   OF   THE   STATE 

uses,  or  only  partly  utilizes,  its  territory.  In  all  such 
controversies,  however,  the  decision  between  the  two 
rival  claimants  is  generally  settled  by  force  of  arms,  not 
by  discussions  of  ethical  standards.  Illustrations  of 
such  conflicts  may  be  found  in  our  o'^ti  history  in  our 
dealings  with  the  Indians,  with  Spain  and  with  Mexico. 
"~  Under  a  theory  of  ownership  based  on  use,  evidently 
no  individual  in  a  community  could  claim  any  particular 

portion  of  land  as  his  own.     As  a  member  of 
use!^*  "^      the  community  he  shared  with  his  fellows  what 

all  collectively  had.  In  other  words,  he  also 
had  the  use  but  not  the  ownership  of  land.  In  tribal 
states,  therefore,  one  may  expect  to  find  that  the  tribe 
will  claim  hunting  or  grazing  grounds  as  its  private  pos- 
session, and  if  nomad  life  is  past,  may  have  permanent 
possession  with  fairly  well-defined  borders,  but  yet  its 
notion  of  ownership,  both  individual  and  communal,  is 
still  an  ownership  based  on  use.  The  same  statement  is 
practically  true  of  highly  developed  patriarchal  village 
life  in  agricultural  communities.  Village  lands  as  a 
whole  are  held  by  the  community,  and  each  recognized 
member  of  it  is  entitled  to  his  share  in  use,  but  he  may 
not  sell  his  portion  nor  dispose  of  it  by  will.  The  shares 
allotted  to  the  members  of  the  community  were  not  neces- 
sarily equal,  for  the  size  of  the  allotment  depended  some- 
what on  the  social  status  of  the  person;  the  essential 
point,  however,  is,  that  each  head  of  a  family  was  en- 
titled to  a  share  for  the  use  of  his  family.  Naturally,  if 
a  family  died  out,  its  right  of  use  reverted  to  the  com- 
munity. 
Similar  theories  of  ownership  were  applied  to  mines 


ESSENTIAL   POWERS  OF   THE   STATE  91 

found  in  the  communal  territory.  These,  also,  were 
held  and  worked  for  the  common  benefit.  When  navi- 
gable waters  became  important  the  same  theory 
owneTwp!  ^^as  applied  to  them.  Members  of  the  com- 
munity might  use  the  waters  as  a  privilege  in- 
cident to  their  citizenship,  but  ownership  was  vested  in 
the  community,  and  individual  use  was  subject  always 
to  communal  regulation. 

Communal  ownership  evidently  involved  much  man- 
agement and  administration  on  the  part  of  the  members 
of  the  community.  Conflicting  claims  of  persons  en- 
titled to  a  share  in  use  had  to  be  adjudicated,  allotments 
made,  customs  declared,  times  for  joint  plowing  and 
harvesting  arranged,  defense  provided  for  and  complete 
regulations  for  the  other  innumerable  details  of  admin- 
istration. If  the  community  was  fomided  on  conquest, 
the  management  was  probably  vested  in  the  conquering 
lord,  his  kinsmen  and  his  immediate  followers;  if  the 
community  represented  a  peaceable  growth  from  clan 
organization,  then  headship  would  naturally  be  vested 
hi  the  heads  of  families  and  in  their  chief  or  elder.  The 
ruling  body  held  periodical  meetings  so  as  to  settle  such 
matters  as  might  demand  attention.  As  long  as  life 
was  simple,  agriculture  primitive,  inventions  few  and 
commerce  merely  local,  such  a  form  of  communal  own- 
ership and  management  was  emin^tly  satisfactory. 
This  is  shown  by  the  fact  that  the  system  developed 
throughout  almost  all  the  world  and  survives  yet  among 
the  larger  part  of  mankind,  in  the  Russian  mir  and  in 
the  village  communities  of  India  and  China. 
But  in  other  localities  many  causes  combined  to  break 


92  THE   DEVELOPMENT   OF   THE   STATE 

do'^\Ti  this  system.  If  through  contact  with  a  wider  en- 
vironment some  men  acquired  more  energy  and  greater 
The  rise  of  ^claptabiHty  than  others,  and  these  quaU- 
personai       tics    showed    thcmselves  m  greater   capacity 

ownership.      .  •       ij.  ^  i  i     i 

m  agriculture,  sucii  persons  would  have  a 
natural  disinclination  to  accept  neglected  holdings  at 
the  next  allotment.  Only  a  permanent  tenure  in  use 
would  satisfy,  and  that  step  developed  naturally  among 
flourishing  and  populous  communities.  This  tendency 
was  strengthened  in  those  communities  which  had  per- 
manent boundaries  by  the  homing  instinct,  so  char- 
acteristic of  all  higher  animal  life.  Men  become  at- 
tached to  the  place  of  their  birth  and  prefer  the  old  and 
the  accustomed  to  the  new,  even  though  there  may  be 
a  theoretical  superiority  in  the  latter.  For  this  reason, 
also,  periodical  reassignments  of  land  fell  into  disfavor. 
A  further  step  leading  on  toward  individual  ownership 
was  that  of  alienation.  A  family  by  migration,  crime  or 
debt  might  lose  its  share  in  the  communal  land,  or  an 
alien  family  under  certain  circumstances  might  gain  a 
holding  after  a  residence  of  a  set  period  of  years.  Again, 
conflicting  claims  of  kindred,  arising,  for  example, 
through  adoption  or  a  father's  personal  preference,  fre- 
quently must  have  involved  transfers  of  right  to  land, 
or  a  conquered  community  might  be  compelled  to  trans- 
fer permanently  ^  large  share  of  its  territory  to  members 
of  the  conquering  tribes.  Such  possibilities  must  have 
familiarized  communities  with  the  thought  of  an  owner- 
ship in  land  that  could  be  alienated,  either  through 
communal  action  or  at  the  wish  of  the  family  or  its  head. 
In  later  times  emphasis  on  the  personal  wish  of  the  head 


ESSENTIAL  POWERS  OF  THE  STATE  93 

of  a  family,  especially  when  voiced  by  a  formal  expression 
of  his  will,  definitely  completed  the  process.  Henceforth 
a  family,  through  its  head,  had  a  claim  to  ownership  in 
land.  It  did  not  simply  have  the  right  of  permanent 
tenure,  but  under  certain  contingencies  it  might  «ven 
alienate  its  possessions.  At  a  still  later  period,  wherever 
democracy  developed,  the  family  as  a  legal  unity  tended 
to  disintegrate.  Under  such  circumstances  even  indi- 
viduals of  the  family  might  personally  hold  land  in  full 
ownership.  This  is  our  present  theory  of  land  holding. 
An  individual  may  own  land,  use  it  or  not  use  it  at  his 
pleasure,  or  may  lease  it  or  sell  it  as  he  prefers.  Many 
argue  that  this  tendency  has  gone  too  far,  and  assert 
that  the  community  should  never  allow  its  citizens,  and 
still  less  aliens,  to  hold  land  from  use.  Such  an  argu- 
ment is  based  on  the  fundamental  proposition  that  the 
use  of  land  is  essential  to  life,  and  that  each  person  who 
holds  needed  land  out  of  use  thereby  defrauds  to  that 
extent  his  fellows  from  part  of  the  opportunities  of  life. 
Such  theories,  for  example,  as  socialism  and  the  single 
tax  favor  communal  o\Miership  of  land,  each  citizen 
having  the  right  to  use,  but  not  to  keep  from  use,  an 
amount  of  land  suited  to  the  necessities  of  his  family  or 
business.  Here,  again,  as  in  the  case  of  the  territorial 
claims  of  states,  there  is  a  conflict  between  an  ownership 
based  on  a  legal  theory,  and  an  ownership  based  on  an 
asserted  ethical  right,  the  right  of  any  individual  to  take 
possession  of  unused  land  if  needed  for  his  support  and 
w^elfare. 

There  are  still  many  sur\'ivals  in  modern  society  of 
communal  ownership.    The  theory  of  Eminent  Domain 


94  THE  DEVELOPMENT  OF  THE  STATE 

implies  that  the  state  has  the  primary  right  to  the 
use  of  lands  as  against  the  claims  of  private  individuals. 
Survivals  Again,  the  waters  of  the  sea-coast,  navigable 
m»^^'  streams  and  their  shores  are,  with  slight  excep- 
ownerlhip.  tious,  communal.  The  same  is  true  in  many 
states  of  all  waste  lands,  mining  and  water  rights 
and  of  unclaimed  or  abandoned  property.  The  family 
also  still  has  ownership  of  all  property  left  by  its  members 
who  die  intestate  and  divide  it  among  themselves  in 
accordance  with  rules  laid  down  by  law.  Finally,  the 
rapidly  extending  sphere  of  governmental  ownership  of 
natural  monopolies  seems  to  imply  that  land  and  mines, 
as  essential  means  of  livelihood,  may  again  become  com- 
munal, not  individual,  in  ownership.  The  outcome  of 
this  clash  of  rival  theories  is,  of  course,  still  a  matter 
of  doubt.  Arguments  for  a  tenure  based  on  use  are 
theoretically  strong.  Land  in  the  possession  of  the  peo- 
ple as  a  whole  is  a  far  stronger  guaranty  of  democracy 
than  its  monopolization  by  the  few.  In  any  case  no  one 
can  safely  deny  that  the  permanent  prosperity  of  any 
state  is  fundamentally  involved  in  the  wisdom  or  non- 
wisdom  of  its  system  of  land  tenures. 

Food  Supplies 

When  the  population  of  any  region  tends  by  natural 
increase  or  through  immigration  to  press  too  closely 
on  its  ordinary  means  of  subsistence,  states  guided  by 
intelligent  leaders  have  been  able  to  multiply  food 
supplies  by  scientific  devices.  Such  means  now  regu- 
larly form  a  large  part  of  governmental  activity. 
Even  the  early  oriental  states  developed  vast  systems 


ESSENTIAL  POWERS  OF  THE  STATE  95 

of  drainage  and  irrigation,  and  facilitated  transporta- 
tion by  the  building  of  roads  and  canals.  Such  works 
are  still  carried  on  m  all  important  countries,  either 
directly  by  the  state  or  under  its  supervision  and  control. 
In  this  country  we  see  further  extensions  of  the  same 
idea  in  the  efforts  of  the  government  to  aid  the  interests 
of  scientific  farming  by  the  support  of  agricultural 
schools  and  by  experiments  in  horticulture  and  stirpi- 
culture.  Increasing  attention  is  given  to  the  preserva- 
tion of  our  forests  and  game,  to  the  utilization  of  arid 
lands  through  irrigation  and  to  the  development  of 
fisheries,  the  importance  of  which  as  a  source  of  food 
supply  is  well  shown  by  the  international  prominence  of 
the  fishing  waters  of  Newfoundland,  Alaska  and  Sag- 
halien.  Kidd^  and  other  \vriters  point  to  the  time  when 
the  tropics  wiU  furnish  nations  of  the  temperate  zones 
with  vast  food  supplies,  and  these  regions,  therefore,  will 
receive  larger  attention  from  states  as  they  feel  the  neces- 
sity of  multiplying  food  for  their  increasing  populations. 

Colonization 

If  population  multiplies  too  rapidly  and  national 
boundaries  cannot  be  enlarged  peaceably  or  through 
war,  then  migration  is  and  has  always  been  the  historic 
remedy.  The  spread  of  population  from  primitive  cen- 
ters has  often  been  traced.  The  colonizing  systems  of 
Phoenicia,  Greece  and  Rome  are  known  to  all  students 
of  classical  history,  and  the  movements  of  Teutonic 
population  in  the  early  Christian  centuries  are  part  of 
our  common  knowledge.  The  invention  of  the  compass, 
1 '-'  The  Control  of  the  Tropics." 


96      THE  DEVELOPMENT  OF  THE  STATE 

the  circumnavigation  of  Africa  and  the  discovery  of 
America  gave  a  new  impetus  to  colonization.  Portugal 
and  Spain  led  the  way,  then  Holland,  France  and  Eng- 
land. The  policy  at  first  followed  was  that  of  exploita- 
tion and  trade;  agricultural  settlements  came  last  and 
were  considered  least  in  importance.  An  era  of  ex- 
ploitation as  such  cannot  permanently  endure.  A  firm 
hold  on  newly  discovered  land  depends  finally  on  mining, 
trading  and  agricultural  centers.  The  mother  country 
protects  and  aids  in  developing  such  centers  in  return 
for  trade  privileges  and  an  acknowledgment  of  suprem- 
acy. Political  capacity  on  the  part  of  the  colony  in 
time  brings  autonomy,  either  peaceably  or  by  revolution. 
The  utility  of  colonies  is  so  manifest  that  every  great 
state  eagerly  adds  to  its  colonial  possessions,  searching 
the  world  for  places  in  uncivilized  or  partly  civilized 
lands  suited  for  trading  or  colpnizing  purposes.  There 
it  establishes  a  sphere  of  influence,  sends  its  traders  and 
missionaries  and  seeks  to  build  up  its  interests  on  a  per- 
manent basis.  The  population  of  the  colony  multiplies. 
The  civilization  of  the  ancestral  home  is  reproduced  in 
miniature,  with  such  modifications  as  are  compelled  by 
differences  in  environment.  This  great  colonizing  era, 
which  is  still  young  though  it  has  already  lasted  over 
four  hundred  years,  is  effecting  profound  changes 
in  political  development.  The  possession  of  immense 
areas  of  fertile  land  suitable  for  colonization  makes  an 
outlet  for  a  surplus,  but  enterprising  population,  fosters 
commerce  and  manufactures  and  strengthens  national 
prestige  and  power.  Tropical  areas  not  suited  to  settle- 
ment are  made  to  furnish  valuable  material  for  foods  and 


ESSENTIAL   POWERS   OF   THE   STATE  97 

niaiiufactiires.  In  consequence,  practically  all  the  avail- 
able parts  of  the  earth  have  come  under  the  influence  of 
western  civilization,  and  the  great  nations  are  expanding 
their  wealth  and  population  in  seeking  to  utilize  the  re- 
spective parts  under  their  sway.  The  twentieth  century 
is  destined  to  see  a  mighty  expansion  of  western  popula- 
tion into  available  centers  at  present  tliinly  populated, 
and  scientific  achievement  on  the  part  of  leading  nations 
will  accomplish  in  a  few  years  for  these  regions  what 
otherwise  would  require  centuries  of  time  and  energy. 

Commerce 

The  next  great  step  in  the  economic  function  of  the 
state  came  with  the  rise  of  commerce.  As  bartering  be- 
^^^  tween   communities  became   increasingly  fre- 

market  cjuent  with  the  growth  of  wants,  the  commun- 
ity had  to  develop  roads  and  market  places. 
Traders  would  not  venture  where  robbery  was  inevi- 
table. Roads  must  be  reasonably  safe,  and  a  place  for 
barter  sot  aside  whose  neutrality  would  be  guarantied. 
Such  market  places  naturally  were  on  the  "marks"  or 
boundaries  or  at  the  junction  of  much-traveled  paths. 
Here  by  custom  would  gather  traders  and  buyers  from 
many  communities,  secured  against  robbery  and  attack 
by  the  custodians  of  the  market  place,  who  would  exact 
their  fees  in  return  for  the  privileges  they  gave.  Such 
a  center  readily  grew  into  a  trading  village,  different  in 
kind  from  the  ordinary  farming  village.  Its  customs 
came  to  be  guarantied  by  the  larger  communities  and 
these  customs  developed  into  the  unwritten  or  wTitten 
charters  of  municipalities  of  later  times.     In  order  to 


98  THE   DEVELOPMENT   OF   THE   STATE 

facilitate  commerce  some  attention  would  have  to  be 
paid  to  the  building  of  roads,  which  might  be  utilized 
also  for  military  purposes.  Along  such  roads  passed 
posts  or  messages  sent  by  merchants  or  by  the  state,  as 
the  necessity  for  frequent  communications  arose  with 
the  development  of  commerce  and  administration.  If 
such  roads  terminated  in  seaport  communities,  harbor 
improvements  also  might  be  deemed  advisable,  and 
these  might  be  made  by  interested  individuals  or  by  the 
community  itself. 

As  trading  became  important  the  necessity  for  some 
common  medium  of  exchange  constantly  grew.     It  be- 
came inconvenient  to  exchange  goods  in  kind, 

A  medium  o     o  j 

of  ex-  even  though  that  system  had  developed  to 
c  ange.  perfection  by  fixing  a  customary  value  on  ev- 
erything tangible,  on  the  exchange  list,  from  a  rude  tool 
to  a  slave.  At  first  some  one  staple  article  was  selected 
and  all  other  things  were  valued  in  that.  Live  stock, 
such  as  sheep  or  cattle  formed  such  a  medium.  When 
metals  were  brought  into  use  these  came  to  be  valuable 
media  for  exchange  and  were  accepted  by  weight  in  re- 
turn for  other  goods.  A  great  idea  came  into  the  busi- 
ness world  when  responsible  communities  or  merchants 
began  to  stamp  under  seal  a  guarantied  weight  in  speci- 
fied metals.i  Such  coins  passed  through  definite  devel- 
opment in  respect  to  shape,  edging,  impressions  and  so- 
lidity of  guaranty,  and  finally  the  entire  matter  of  coin- 
age was  removed  from  the  hands  of  individuals  and 

^  For  such  studies  note  for  example,  Alexander  Del  Mar,  "History 
of  the  Precious  Metals,"  1880;  and  "History  of  Money  in  Ancient 
Countries,"  1885,  George  Bell  &  Sons,  London. 


ESSENTIAL   POWERS  OF   THE   STATE  90 

coiiiinuiiities  and  centered  in  the  state.  The  national- 
izing of  coinage  systems  and  international  agreements 
based  on  these  clearly  indicate  a  high  and  wide  com- 
mercial development.  In  all  such  cases  the  metal  so 
stamped  is  considered  to  be  inherently  worth  the  amount 
indicated  by  the  stamp.  Governments,  tempted  by  the 
hope  of  gain  or  of  borrowing  money  under  false  pre- 
tenses, have  stamped  as  money  material  not  intrinsically 
worth  the  amount  indicated  by  the  stamp.  Such  fiat 
money  becomes  in  effect  a  note  or  promise  to  pay  and  is 
of  value  only  in  proportion  to  the  ability  of  the  state  to 
give  full  face  value  on  demand.  Illustrations  may  be 
found  in  the  debased  coinage  of  medieval  days  and  in 
token  money  and  paper  currency  of  modern  times. 
Akin  to  this  development  is  the  present  power  of  the 
state  in  fixing  standard  weights  and  measures. 

As  long  as  wealth  consists  chiefly  of  goods  in  kind,  the 
main  problems  of  economic  life  center  in  the  multiplica- 
tion of  fertile  lands  and  labor;  but  when  through 
commerce  wealth  in  the  form  of  money  begins 
to  accumulate,  a  new  set  of  problems  arises.  Money  of 
course  may  be  kept  on  hand  in  hidden  places  against  a 
time  of  need,  subject  only  to  the  danger  of  robbery,  a 
danger,  however,  always  imminent.  It  wc^ild  manifestly 
be  an  advantage  to  the  owner  if  some  responsible  party 
in  return  for  the  use  of  the  money,  would  assume  charge 
of  it  and  return  it  on  demand,  or  use  it  and  pay  interest 
for  the  privilege.   Furthermore,  when  a  merchant  wishes 

*  For  a  brief  sketch  of  ancient  banking,  see  Sidney  Dean,  editor- 
in-chief,  "History  of  Banking  and  Banks,"  Chapter  I,  1884,  Pelham 
Studios,  Boston. 


100  THE   DEVELOPMENT   OF   THE   STATE 

to  send  money  to  some  distant  place  in  payment  of  goods 
bought  or  to  be  purchased,  he  can  send  it  under  guard 
to  the  place  indicated,  but  at  heavy  expense  and  at  great 
danger  of  robbery.  He  would  be  greatly  advantaged  if 
some  wealthier  merchant  having  branches  in  both  places 
would  accept  the  money  in  the  one  place  and  agree  to 
pay  a  similar  sum  in  the  other  place  on  demand,  making 
a  slight  charge  only  for  the  transaction.  From  such 
needs  as  these  developed  a  system  of  private  banks,  which 
greatly  aided  the  development  of  commerce  through 
facility  of  investment  and  exchange!  The  failure  of 
such  a  bank  to  meet  its  obligations  might,  however, 
prove  to  be  a  great  hardship  to  public  as  well  as  to  pri- 
vate interests.  Two  governmental  policies  developed 
from  this  possibility,  (1)  close  and  efficient  regulation 
of  private  banks  so  as  to  diminish  the  possibility  of  loss 
to  innocent  individuals  and  (2)  the  establishment  of 
national  banks,  either  like  the  Bank  of  England  or  the 
original  United  States  Bank  or  like  the  national  banking 
system  of  the  United  States  as  developed  during  the 
last  half  century.  By  such  regulation  of  banking  inter- 
ests the  government  brings  stability  and  confidence  into 
the  monetaiy  system  of  the  community. 

Along  similar  principles  the  state  undertakes  in  highly 

developed  commercial  communities  to  regulate  for  the 

public  good  great  business  interests  like  that 

state  reg-     q£  insurauce  and  corporations  of  all  sorts,  both 

ulation.  ^  _  ' 

private  and  quasi-public.  As  an  additional 
aid  to  commerce  a  modern  state  establishes  a  consular 
service  which  it  places  at  the  service  of  its  citizens  who 
are  abroad  or  engaged  in  foreign  commerce.     It  negoti- 


ESSENTIAL   POWERS  OF   THE   STATE  101 

ates  commercial  treaties  with  other  states  so  as  to  de- 
velop reciprocal  commerce,  it  subsidizes  steamship  lines, 
improves  harbors,  lines  the  coast  with  lighthouses  and 
life-saving  stations,  builds  a  navy  to  protect  its  shipping 
and  seeks  to  safeguard  the  lives  and  property  of  its  citi- 
zens in  foreign  countries. 

Manufacturing 

In  simple  primitive  communities  industrial  life  was 

represented  by  the  manufacture  of  tools,  weapons  and 

household  implements,  and  was  almost  entirely 

'^^^  personal,  not  communal.     To  be  sure  the  com- 

artisan.  ^  ' 

munity  was  interested  in  the  development  of 
tools  and  weapons  and  took  a  lively  interest  in  seeing  that 
each  member  had  his  quota,  but  the  making  of  these 
was  individual,  and  individual  ownership  began  in  no- 
tions associated  with  personal  possession  of  tools,  weap- 
ons, clothes  and  ornaments.  The  manufacture  of  weap- 
ons and  ornaments  probably  fell  to  the  lot  of  men;  tools 
for  primitive  industry,  weaving  and  household  imple- 
ments of  all  sorts  were  probably  invented  by  women,  on 
whom  devolved  manual  labor  and  domestic  cares.  ^  Each 
patriarchal  household  was  the  center  of  industry,  and 
the  comfort  of  its  members  depended  on  the  skill  and 
ingenuity  all  displayed.  With  the  use  of  metals  much 
more  skill  in  the  handling  of  tools  was  necessary.  Then 
developed  the  smith,  first  of  artisans  and  parent  of  many 
smithing  trades.  It  is  probable  that  at  first  skilled 
smiths  wandered  about  from  village  to  village,  gypsy 
fashion,  preserving  the  secrets  of  their  trade  and  sup- 
'  See  in  Bibliography  references  under  names,  Ely,  and  Mason. 


102  THE   DEVELOPMENT   OF   THE   STATE 

plying  the  demands  for  better  and  more  efficient  tools 
and  weapons.  From  this  parent  trade  developed  in 
turn  the  various  crafts  of  later  commercial  life,  each  the 
center  of  its  peculiar  industry,  and  the  membership  of 
each  bound  together  in  ties  of  guild  relationship,  modeled 
in  organization  after  the  clan.  As  long  as  these  trade 
guilds,  made  up  of  masters  and  men,  were  useful  and  flex- 
ible, the  state  encouraged  them  with  special  privileges 
and  recognition  of  their  peculiar  customs  or  charters. 
When,  however,  they  became  too  rigid,  and  failed  to  rise 
to  broader  commercial  life,  they  were  suppressed,  and 
freedom  in  industrial  life  was  adopted  as  a  policy.  Un- 
der this  modern  system,  after  a  long  era  of  suppression, 
trade  organizations  once  more  developed  in  the  form  of 
trade  unions  and  federations  of  trades  and  industries. 
The  place  of  these  in  the  state  is  gradually  bemg  settled 
by  judicial  decision  and  legislation. 

Industries  in  the  larger  sense  received  little  attention 
from  the  state  up  to  recent  times.  Monopolies  might  be 
granted  so  as  to  encourage  some  particular  in- 
larger  dustry,  tariffs  placed  on  imports  so  as  to  en- 
courage domestic  manufactures  and  patent 
rights  given  in  order  to  encourage  ingenuity  in  inven- 
tion, but  these  ideas  did  not  become  definite  scientific 
governmental  policies  until  the  nineteenth  century. 
Now,  if  a  state  wishes  to  develop  its  own  industries  it 
does  so  by  placing  tariff  duties  on  all  competing  goods 
entering  the  country.  This  is  virtually  an  indirect 
tax  on  home  consumption.  If  a  state  wishes  to  sell  to 
the  foreign  trade  its  industrial  products,  it  must  reduce 
duties  on  those  goods  that  come  in  exchange  for  such 


ESSENTIAL   POWERS  OF  THE   STATE  103 

exports.  Industries  also  are  stimulated  by  patent  laws 
which  grant  monopolies  in  the  manufacture  and  sale 
of  inventions.  The  ownership  of  such  patents  has  been 
one  of  the  greatest  agencies  in  the  development  of  mod- 
ern capitalism.! 

In  all  these  forms  of  economic  life,  the  agricultural, 
commercial  and  industrial,  the  state  rarely  interferes  in 
Regulation  the  rcgulatiou  of  labor.  Slavery  and  its  modi- 
of  labor.  ^^j  ioTUi  of  serfdom  were  the  prevalent  forms 
of  labor  dovni  to  the  age  of  commerce.  In  the  tran- 
sition from  one  to  the  other  regulations  of  labor  were 
increasingly  made  by  the  state,  but  only  as  it  was  nec- 
essary to  define  customary  law  in  respect  to  personal 
status  and  property  rights.  Commercial  and  industrial 
life  brought  about  a  demand  for  a  powerful  umpire  to 
mediate  between  the  wealthy  and  the  agricultural,  in- 
dustrial population.  This  interference  took  the  form  of 
adjusting  the  status  of  the  serf  and  the  freedman  in  the 
early  stage,  and  in  the  later  stage,  of  the  freeman  who 
was  not  a  landowner,  a  merchant  nor  a  master  crafts- 
man. As  long  as  class  distinctions  obtain  by  constitu- 
tion, such  regulation  is  necessary  whenever  a  change  in 
status  takes  place.  In  democracies,  where  all  men  by 
theory  are  equal,  the  state  cannot  legislate  for  or  against 
any  particular  class  but  must  treat  all  alike.  While  this 
is  true  of  persons  it  is  not  true  of  occupations.  Some 
occupations  are  distinctly  beneficial  to  the  state,  others 
are  harmful  or  likely  to  prove  so  under  careless  manage- 
ment.    It  is  common  for  all  states  to  encourage  the  first 

*  For  an  excellent  series  of  addresses  on  patents,  see  report  of 
f  Patent  Centennial  Celebration,"  1892,  Washington. 


104  THE   DEVELOPMENT   OF   THE   STATE 

class  by  carefully  safeguarding  their  interests;  and  to  pro- 
hibit socially  injurious  occupations  entirely,  such  as  cer- 
tain forms  of  gambling ;  and  to  discourage  others,  such 
as  the  liquor  traffic,  by  compelling  persons  so  engaged  to 
submit  to  stern  regulation  and  heavy  license  fees. 

IV.     The  Family  in  its  Relation  to  the  State 

The  "patriarchal  theory"  of  the  origin  of  the  state 
was  considered  satisfactory  down  to  within  a  very  few 
years.  It  assumed  an  original  pair  of  human 
matriarchal  bciugs,  multiplying  by  successive  generations 
*°"  ^'  into  a  clan,  a  union  of  these  into  a  tribe  and  a 
union  of  tribes  into  a  nation.  This  theory  of  late  years  has 
been  considerably  modified.  Researches  into  the  origin 
of  the  family  show  that  the  patriarchal  family  came  quite 
late  in  human  history  and  was  preceded  by  a  matriarchal 
stage  in  which  the  father  played  a  relatively  insignificant 
part,  as  the  notion  of  paternity  was  unknown.  The  family 
of  that  stage  is  frequently  known  as  the  totem  or  matriar- 
chal family,  in  which  form  of  family  a  mother  supported  \C\ 
her  own  children,  aided  by  her  uterine  brothers  and  ma- 
ternal uncles.  These  would  rank  as  fathers  (protectors) 
and  grandfathers  to  the  children,  who  were  not  related  to  ~T 
their  natural  father  nor  to  his  children  by  other  wives. 

Members  of  the  same  totem  did  not  necessarily  live  in 
the  same  group.  Each  group  might  contain  parts  of 
Rise  of  the  ^cvcral  totems.  A  man  passing  from  grou})  to 
patriarchal  group  would  find  totcm  relations  in  all,  and 
^°^'  ^'  these  were  bound  together  by  bonds  of  kinship 
and  common  worship.  It  was  not  the  totem  family 
that  developed  into  the  nation  but  the  horde  or  group 


\r 


ESSENTIAL   POWERS  OF   THE   STATE  105 

that  contained  parts  of  numerous  totems.  As  popula- 
tion increased  and  the  struggle  for  food  supplies  became 
keener,  hordes  held  together  more  firmly  for  purposes  of 
self-protection.  As  men  came  to  understand  the  possi- 
bilities in  the  domestication  of  animals  and  in  agricul- 
ture, there  came  a  demand  for  slaves  and  for  women  as 
drudges  in  the  household.  Marriage  by  capture  and  by 
purchase  became  common,  and  wives  so  obtained  were 
the  property  of  the  husband's  famity. 

As  a  man  of  importance  or  prowess  might  easily  have 
many  women  as  slaves  in  his  household,  whose  children 
by  theory  were  all  hi;g,  it  is  evident  that  a  patriarchal 
family  meant  a  family  quite  different  from  its  predeces- 
sor or  from  the  modern  monogamous  family. 

While  the  patriarchal  family  was  in  process  of  forma- 
tion, the  members  of  the  horde- tribe,  composed  of  several 
Relation  of  totems,  might  intermarry  and  after  many  gen- 
tolhe"*^*^*  erations  truly  asserting  in  a  general  way  their 
state.  kinship  and  common  descent,  might  proceed 

to  regulate  to  some  extent  kinship  and  property  rights. 
As  the  tribe  broke  up  into  smaller  grojips  which  settled 
down  definitely  into  pastoral  and  agricultural  occupa- 
tions, such  patriarchal  groups  would  grow  still  more 
solidified  and  would  grow  into  a  clearly  defined  kinship 
group,  tracing  descent  to  a  common  ancestor,  and  bound 
together  by  close  tics  of  blood  and  common  ancestral 
worship.  These  groups,  again,  might  fall  apart  into  yet 
smaller  groups  as  village  communal  life  developed,  which 
in  turn  would  be  made  up  of  families  approximating 
somewhat  to  the  modern  idea  of  a  natural  family. 

Several  matters  deserve  repetition  in  this  explanation 


7/0 


106  THE   DEVELOPMENT   OF   THE   STATE 

of  family  development.  The  totem  family  itself  regu- 
lated kinship  rights,  settled  disputes  and  acknowledged 
bonds  of  peculiar  obligation  among  its  own  members. 
The  embryo  state,  the  horde,  had  no  control  over  the 
family  as  such;  it  controlled  only  individuals,  irrespec- 
tive of  totem,  who  happened  for  the  time  being  to  be 
enrolled  in  the  horde.  The  patriarchal  family  also 
regulated  its  own  kinship  rights  and  relationships  and 
was  responsible  for  the  conduct  of  its  members.  Its 
fighting  men  as  such  were  under  the  authority  of  the 
horde-tribe  which  represented  the  state. 

In  this  way  from  the  totem  family  and  from  the  horde 
developed  four  distinct  unities: 

1.  The  tribe,  considering  its  members  akin 

Groups  in  '  ° 

the  com-  through  some  remote  or  fictitious  ancestor,  and 
™"^»  y-  regulating  in  a  general  way  kinship  rights  and 
common  worship. 

2.  The  gens,  a  more  closely  related  part  of  the  tribe, 
having  a  common  ancestor  nearer  than  the  joint  reputed 
ancestor  of  all  the  gentes,  and  regulating  more  closely 
kinship  rights  and  worship  of  the  gentile  ancestor. 

3.  The  clan,  a  part  of  the  gens,  dating  back  theoretic- 
ally for  at  least  four  generations  and  practically  iden- 
tical with  the  ancient  village  community. 

4.  The  patriarchal  family,  consisting  of  a  living  head, 
his  slaves,  his  subordinate  kin  and  his  immediate  de- 
scendants and  their  offspring. 

With  these  developments  agricultural  life  was  in  full 
swing,  the  authority  of  the  tribe  and  gens  was  relatively 
lessening  and  the  village  might  practi'cally  be  considered 
a  state,  as  far  as  the  state  may  be  said  to  have  existed  in 


ESSENTIAL   POWERS  OF   THE   STATE  107 

those  times.  In  this  case  the  sovereignty  of  the  state  is 
almost  the  same  as  the  authority  of  the  father,  a  pater- 
nal authority,  however,  very  different  from  that  of  a 
modern  family,  in  that  patriarchal  power  was  exerted 
over  a  much  larger  group,  composed  of  many  who  only 
by  fiction  could  be  considered  as  related  to  him.  Unions 
of  clans  typified  by  the  geiis,  and  of  gentes  typified  by 
the  tribe,  should  in  this  stage  be  considered  as  confedera- 
tions, each  union  not  having  in  itseK  sovereignty  over 
its  communities,  but  exercising  only  such  slight  powers 
as  custom  had  placed  in  its  hands. 

Obviously,  a  state  in  the  modern  sense  could  develop 
only  when  a  village  community,  or  a  loose  confederation 
The  later  of  Communities,  devoting  itself  to  commerce 
famir'^a^  aucl  industry,  became  cosmopolitan  and  trans- 
the  state,  lated  the  authority  of  the  father  into  the 
authority  of  a  ruler,  still  the  father  of  the  people,  but 
in  much  the  same  conventional  way  as  the  millions 
of  Russians  call  the  Czar  their  Little  Father,  to  dis- 
tinguish him  from  the  Great  Father  of  all  mankind. 
As  this  stage  of  statehood  developed,  the  old  patriarchal 
family  slowly  passed  into  the  classic  form,  as  a  distinc- 
tion arose  between  the  immediate  natural  family  and 
the  collection  of  slaves  and  servitors.  The  classical  no- 
tion of  patriarchal  family  in  its  fully  developed  form  is 
best  illustrated  from  the  patria  potestas  of  the  Romans. 
Each  head  of  the  family  enjoymg  this  power  had  a  voice 
in  the  government  of  the  larger  community;  as  a  pater 
he  was  supreme  over  his  own  household  of  wife,  children 
and  their  descendants,  and  was  lord  or  dominus  over  his 
household  of  slaves  and  retamers.     As  the  notion  of  res 


108  THE   DEVELOPMENT  OF  THE   STATE 

publica  developed,  private  interests  became  more  and 
more  subordinated  to  the  state,  which,  through  a  col- 
lective body  of  the  most  eminent  patres  in  the  commun- 
ity, gradually  extended  its  authority.  This  authority 
took  the  form  of  interference  in  regard  to  the  disposition 
of  family  property  at  the  death  of  its  head.  It  regu- 
lated succession,  the  testament  or  will,  kinship  rights 
and  responsibilities  and  inflicted  punishment  for  debt 
or  crime  when  public  policy  seemed  to  demand  it.  In- 
creasing emphasis  was  placed  on  the  rights  of  the  natural 
as  agamst  the  artificial  family  of  the  patriarchal  system, 
and  as  humanitarian  ideas  crept  in  through  the  influence 
of  Stoicism  and  Christianity  the  status  and  treatment  of 
slaves  were  improved. 

Though  many  survivals  of  the  patriarchal  system  per- 
sisted for  centuries  after  the  beginning  of  the  Christian 
era,  yet  Christian  domestic  ideals  and  Ger- 

The  '  ,*' 

modern  mauic  custouis  slowly  brought  about  changes 
amiiy.  ^-^^^  ushcrcd  in  the  monogamous  family  of 
modern  times  which  traces  descent  through  both  parents. 
The  church  for  a  time  almost  supplanted  the^tate  in  its 
regulation  of  the  family,  and  had  jurisdiction  over  mar- 
riage and  divorce,  testaments,  kinship,  education  and 
morals.  The  rise  of  the  modem  state,  brought  about  by 
changes  in  economic  conditions  and  increase  of  general 
intelligence,  deprived  the  church  of  many  of  its  powers 
and  especially  freed  the  family  from  ecclesiastical  con- 
trol by  the  state's  gradual  assumption  of  those  regulative 
functions  formerly  exercised  by  the  church.  Marriage 
has  become  civil,  divorce  is  granted,  if  at  all,  by  the 
courts  or  by  lawmaking  bodies,  kinship  rights  and  the 


ESSENTIAL   POWERS  OF  THE   STATE  109 

will  are  regulated  by  law,  education  is  secular  and 
largely  supported  by  the  state,  which  also  acts  in  loco 
parentis  in  case  of  parental  neglect,  or  incompetency  or 
of  complete  orphanage.  In  other  words,  the  family  once 
anterior  to,  and  intlependent  of,  the  state,  has  grad- 
ually become  by  theory  entirely  subject  to  the  supremacy 
of  the  state,  which  does  not  hesitate,  when  public  policy 
seems  to  demand  it,  to  regulate  the  domestic  institution 
as  fully  and  as  effectively  as  it  does  economic  institutions. 

V.    The  Relation  of  Church  and  State 

The  influence  of  the  state  in  matters  religious  presents 

a  curious  line  of  development.     Any  permanent  phase 

of  human  activity  will  embody  itself  m  a  social 

The  totem.      ...  ,  ,      .         ,         ,         . 

mstitution,  and  the  church  is  the  mstitution 
through  which  religious  activity  formally  expresses 
itself.  In  the  animistic  stage,  religion,  if  that  term  may 
be  applied  to  savage  notions  of  the  supernatural,  cen- 
tered in  totemistic  worship.  The  older  men  of  the  totem 
represented  the  authority  of  the  church.  They  regu- 
lated totem  relationship  with  its  system  of  rights  and 
obligations,  instructed  and  initiated  the  youth  into  the 
mysteries  of  the  worship,  interpreted  the  meaning  of 
the  supernatural  and  sought  as  medicine  men  and  con- 
jurers to  heal  the  physical  and  mental  diseases  of  the 
people.  Such  a  function  contains  in  germ  all  that 
the  church  strove  to  become  in  later  ages,  and  its 
early  importance  as  a  civilizing  factor  can  hardly  be 
overestimated.! 

'  For  an  excellent  study  of  this  type  of  society,  see  Spencer  and 
Gillen,  "  The  Native  Tribes  of  Central  Australia,"  1899,  London. 


110  THE   DEVELOPMENT   OF   THE   STATE 

With  the  development  of  patriarchal  society  totemism 
disappeared  and  m  its  place  came  ancestor  worship. 
The  formal  part  of  worship  now  became  the 
worshi"'^  prerogative  of  heads  of  families,  so  far  as  an- 
cestral deities  were  concerned,  but  side  by  side 
with  these  arose  a  system  of  nature  worship,  partly  a 
matter  of  common  superstition  and  partly  a  cult  with  a 
definite  priesthood.  Supplementing  these  systems  were 
seers,  soothsayers  and  necromancers,  who  claimed  a 
deeper  insight  into  the  divine  will  and  mind  than  the 
more  formal  priesthood.  The  combined  influence  of 
these  several  priestly  classes  was  overwhelming.  The 
entire  life  of  the  community  was  dominated  by  them, 
and  men  became  perforce  religious  in  thought  and 
action. 

The  maturity  of  the  patriarchal  system  marks  the 
height  of  this  influence.  During  this  period  church  and 
Influence  State  Were  for  all  practical  purposes  one  in  aim 
of  the  an(^[  in  spirit.     Rulers  were  themselves  priests 

church  in  .        ,  .        ,        „  .  -r»      i      •         • 

patriarchal  and  excrcised  priestly  lunctions.  Both  msti- 
times.  tutions  v^re  conservative,  loved  stability  and 

taught  submission  to  authority.  The  church  deified 
the  ruler  either  as  himself  a  god  or  God's  representative, 
exalted  his  priestly  authority,  educated  his  nobles  to 
obedience,  and  kept  the  masses  submissive  by  declaring 
rebellion  to  be  impious.  Consequently,  the  priesthood 
became  a  separate  class,  a  social  hierarchy,  having  large 
possessions  of  land,  wealth  and  special  privileges,  and 
exercised  an  authority  hardly  second  to  that  of  the 
throne  itself.  Its  leaders  were  the  trusted  advisers  and 
assistants  of  the  king.     It  had  charge  of  higher  educa- 


ESSENTIAL   POWERS  OF   THE   STATE  111 

tion  and  instructed  aspiring  youth  in  medicine,  sanita- 
tion, the  known  sciences,  statecraft  and  divine  wisdom. 
It  regulated  the  morals  of  the  people,  condemning  or  ap- 
proving social  customs,  and  punishing  infringements  of 
its  standards.  It  mculcated  the  virtues  of  hospitality, 
charity  and  kindness  toward  the  lowly.  It  sanctioned 
wholesome  amusements  and  participated  in  them,  devel- 
opmg  for  its  own  purposes  the  rhytlim  of  the  song  and 
the  dance,  as  well  as  the  stately  march  of  the  proces- 
sion and  the  use  of  musical  instruments.  Its  connec- 
tion with  family  worship  gave  it  influence  there  also, 
and  tlirough  its  conservative  attitude  and  educational 
power  it  was  able  to  solidify  into  a  static  civilization  the 
slowly  developing  forces  of  the  patriarchal  period. 

But  this  harmony  of  church  and  state  was  sometimes 
rudelj^  disturbed.  The  prophetic  or  inspirational  side 
Beginnings  ^^  religion,  voiced  by  the  seer  and  by  the  re- 
of  the  ligious  reformer,  was  not  infrequently  in  oppo- 

separation         .    .  i    i        i 

of  church  sition  to  the  status  quo,  and  denoimced  both 
and  state,  p^lcr  and  priest  for  their  shortcomings.  Then, 
too,  as  patriarchal  states  passed  into  the  age  of  commer- 
cialism, the  spirit  of  the  newer  age  fought  against  the 
existing  system.  As  intercourse  with  other  countries 
developed,  there  came  a  knowledge  of  other  divinities; 
worshipers  of  these  resided  within  the  borders  of  the 
state,  and  in  many  cases  the  worship  itself  was  encour- 
aged and  sanctioned.  New  influences  and  broader 
knowledge  tended  to  destroy  unquestioning  belief  in  the 
older  system,  and  material  progress  demanded  liberal- 
ism in  state  policy.  Competition  of  religious  ideas  and 
systems,  and   philosophizing   slowly  sapped  beliefs  in 


112  THE   DEVELOPMENT   OF   THE   STATE 

local  gods.  Even  though  the  forms  of  worship  survived^ 
confidence  in  religious  teaching  and  the  efficacy  of  wor- 
ship disappeared.  For  the  church,  as  a  rule,  is  slow  to 
adapt  its  teachings  to  the  changing  conditions  of  the 
age,  its  priesthood  is  a  class  apart  and  sees  the  signs  of 
the  times  by  refracted  light.  It  is  inherently  conserva- 
tive and  tends  to  emphasize  the  permanent  and  accepted 
features  of  life  but  not  to  understand  the  volcanic  energy 
pent  up  and  seeking  expression.  For  such  reasons  it 
regularly  fails  to  adapt  itself  readily  to  the  newer  environ- 
ment, loses  its  power  in  consequence  and  then  after 
slow  readjustments  tends  to  regain  part  of  the  influence 
it  has  lost. 

At  such  crises  the  truer  interests  of  society  may  de- 
mand that  the  state  supersede  the  church  in  many  of  its 
Subordina-  activitics.  The  state,  in  so  doing,  realizing  the 
church  to^  authority  and  prestige  of  the  church  over  the 
the  state.  miuds  and  hearts  of  men,  may  continue  to  al- 
low it  large  powers  and  wealth,  but  by  regulation  of 
its  organization  and  teachings  makes  it  a  useful  ally 
rather  than  a  rival  for  supremacy.  It  may,  however, 
go  farther  than  this;  by  depriving  it  of  countenance  and 
financial  support,  it  may  thereby  thrust  it  into  compe- 
tition with  other  social  institutions  dependent  for  sup- 
port on  popular  favor  and  approval.  The  period  of  the 
Renaissance  practically  illustrates  this.  .  When  the  the- 
ological tendencies  of  the  church  became  iron  bands  re- 
strictive of  the  growing  life  within,  the  state  burst  these 
asunder,  encouraged  science  and  invention,  philosophy 
and  secular  education  and  ignored  ecclesiastical  teach- 
ings in  respect  to  charity,  crime,  insanity,  intemperance 


ESSENTIA!.   POWERS   OF   THE   STATE  113 

and  such  social  ethical  (]iiostions.  It  sought  to  solve 
these  by  scientific  investigation  rather  than  by  theologi- 
cal dogmatism.  The  result  is  that  the  church  is  no 
longer  looked  on  as  the  final  authority  in  such  matters, 
but  the  state,  making  use  of  the  teachings  of  science  and 
sociology,  has  become  an  authority  in  fixing  socio-ethical 
standards. 

On  the  other  hand  the  church  in  adversity  may  turn 

away  from  the  material  aspect  of  ecclesiasticism  and 

catch  glimpses  of  a  world  mission,  a  world  em- 

Separation  ,  .  .    . 

of  church  pire  dominated  by  religious  ideals.  The  in- 
spiration of  such  an  ideal  might  even  carry  the 
church  to  victory  against  the  state  and  render  its  govern- 
ment theocratic.  Such  struggles  of  church  and  state 
have  been  common  and  victory  has  passed  from  one  to 
the  other.  Sometimes  as  in  the  struggles  of  church  and 
state  in  medieval  and  modern  times,  a  truce  has  been 
declared  and  the  respective  powers  of  each  d1?fined,  e.  g., 
the  concordats  so  common  in  the  history  of  the  Roman 
Catholic  church.  Broadly  speaking,  however,  when- 
ever a  state  passes  into  commercial-manufacturing  life  it 
tends  to  emancipate  itself  from  sacerdotal  authority  and 
to  favor  a  more  or  less  complete  separation  of  church 
and  state.  There  seem  to  be  four  well-defined  stages  in 
the  accomplishment  of  this  object: 

1 .  The  state  and  church  separate  in  organization,  per- 
sonnel and  function,  but  work  in  hannony. 

2.  The  state  subordinates  the  church  so  effectively 
that  it  becomes  virtually  a  department  of  governmental 
administration,  dominated  by  the  ruler  and  his  ministers. 

3.  The  church  frees  itself  from  governmental  control 


114  THE   DEVELOPMENT  OF  THE  STATE 

in  spiritual  matters,  but  is  financially  chiefly  supported 
by  the  state, 

4.  The  church  becomes  entirely  separate  from  the  state 
and  is  no  longer  supported  from  public  funds. 

As  already  indicated,  the  chiu-ch  in  conflict  with  the 
state  lost  many  of  its  historic  functions.  As  long  as  it 
Increased  was  lu  Sympathy  with  the  state  and  was  sup- 
iroTorthe  ported  by  it,  it  mattered  little  which  institution 
state.  performed   social   service.     But   as   the   two 

separated  and  financial  support  was  supplied  more 
sparingly  or  withdrawn  altogether,  it  became  important 
from  the  state's  standpoint  that  it,  rather  than  the 
church,  should  perform  functions  so  essential  to  social 
welfare.  Financial  weakness  also  made  the  church  less 
able  to  perform  her  accustomed  functions.  Slowly  but 
surely,  therefore,  one  power  after  another  passed  from  the 
church  to  the  other  social  institutions  or  to  the  state; 
charity,  medicine,  amusements,  scientific  investigation, 
phflosophy,  education,  domestic  regulation  and  morals. 
This  change  has  come  more  fully  in  some  states  than  in 
others,  but  broadly  speaking  the  power  of  the  church 
tends  to  confine  itself  to  devotional  and  spiritual  lines 
only,  and  other  functions  pass  from  its  control.  The 
church  may  still  advance  theories  of  disease  and  healing, 
or  scientific  and  philosophic  speculations,  and  may  seek 
to  regulate  amusements,  morals,  domestic  institutions 
and  education,  but  such  religious  dicta  are  mere  opin- 
ions, not  authoritative  decisions,  and  must  stand  if  at  all 
by  their  inherent  reasonableness. 

The  effect  of  all  this  is  not  necessarily  to  weaken  the 
church.    The  older  organization,  it  is  true,  may  be  sup- 


ESSENTIAL   POWERS   OF   THE  STATE  115 

planted  by  a  newer  and  more  progressive  one,  but  this 
should  and  does  result  in  a  deepening  of  spirituality  and 
^     ,     ,   a  clearer  philosophic  insight  into  the  meaning 

The  church  i  r-  o  o 

independ-  of  Hfc.  Frccd  from  the  entanglements  of  ma- 
^^^'  terial  power  and  wealth,  it  may  devote  itself  to 

more  important  matters.  It  may  liberalize  its  theology, 
spiritualize  its  teachings,  humanize  its  ethical  ideals 
and  seek  to  influence  men,  not  as  formerly,  by  empha- 
sis on  pains  and  penalties,  but  on  the  beauty  of  holi- 
ness and  the  ideals  of  human  brotherhood.  Experience 
seems  to  show  that  such  a  church  exercises  a  deeper 
and  truer  sway  over  men's  hearts  and  minds  than  an 
ecclesiastical  organization  wielding  what  may  now  be 
considered  as  governmental  functions. 

SPECIAL  REFERENCES 

Land  and  Property:  Laveleye,  Letourneau,  Fustel,  Simcox 
(vol.  ii) ;  American  Journal  of  Sociology,  vol.  iv,  November, 
1898,  T.  Veblen,  "The  Beginnings  of  Ownership"; 
American  Historical  Review,  vol.  viii,  p.  3,  L.  Gaillard, 
"The  Origin  of  Property  in  Land."  An  excellent  bibliog- 
raphy on  economic  subjects  may  be  found  in  C.  J.  Bullock, 
"Introduction  to  the  Study  of  Economics,"  Silver,  Burdett 
&Co. 

Colonization:  Ireland,  Johnston,  Keller,  Morris,  Reinsch; 
J.  R.  Seeley,  "Expansion  of  England,"  Cambridge,  1883. 

The  Family:  Howard,  "Matrimonial  Institutions." 

Relation  of  Church  to  State:  W.  H.  Abraham,  "Church  and 
State  in  England,"  1905.  Philip  Schaff,  "Church  and 
State  in  the  United  States,"  1888.  Heinrich  Geffcken, 
"Church  and  State"  (general).  Two  volumes  (trans,  by 
Edward  F.  Taylor),  1877. 

For  an  Historical  Study:  Bryce,  "Holy  Roman  Empire." 


PART  THREE 

THE   GOVERNMENT 


CHAPTER  VI 

THE    ORGANIZATION   OF   THE   STATE 

As  the  state  is  the  nation  organized  for  the  protection 

of  life  and  property,  there  will  evidently  be  in  every 

state  a  definite  political  organization  author- 
Definition     .  .     ^  p 

of  govern-  izcd  to  cxercisc  the  sovereign  powers  of  the 
"^°  ■  state.     This  organization  is  called  the  govern- 

77ient,  and  may  be  defined  as  that  organization  in  which 
is  vested  by  constitution  the  right  to  exercise  sovereign 
powers. 

Classification  of  Governments 

Although  every  state  has  a  governmental  organiza- 
tion, there  are  wide  variations  in  the  kinds  of  organiza- 
tion in  use.     Many  attempts  have  been  made 
ciassifica-     to    classify   these    forms   into   a   satisfactory 
*'°""  system.     The  Greek  classification,  usually  as- 

signed to  Ai'istotle,!  is  the  best  known  of  these.  It 
divides  governments  into  monarchies,  aristocracies  or 
democracies,  according  as  the  legal  exercise  of  sovereign 
power  is  in  the  hands  of  one,  few  or  many.  This  system 
is,  however,  obsolete,  owing  to  numerous  changes  in  the 
forms  of  government  in  modern  times.  It  is  impossible, 
for  instance,  to  consider  as  similar  the  monarchies  of 

»  f  Politics,"  Book  III,  Sec.  7. 
119 


120  THE   DEVELOPMENT   OF   THE   STATE 

Russia,  China,  Great  Britain  and  Spain,  or  the  repubhcs 
of  France,  Mexico,  Switzerland  and  the  United  States 
of  America.  Sucli  a  classification  does  not  classify. 
Furthermore,  since  the  development  of  modem  de- 
mocracy, the  form  of  government  is  often  radically 
different  from  its  spirit.  Great  Britain  by  theory  is  an 
absolute  monarchy,  but  is  m  fact  a  representative 
democracy,  and  Mexico,  which  is  by  theory  a  de- 
mocracy, is  in  fact  a  close  aristocracy.  This  diver- 
gence between  theory  and  fact  and  the  development 
of  newer  forms  of  government  since  the  time  of  Aiis- 
totle,  such  as  systems  of  popular  representation  and 
of  federation,  make  it  difficult  to  devise  a  satisfactory 
classification. 

For  convenience  it  may  be  well  to  classify   govern- 
ments by  form,  as  (1)  unitary  or  (2)  federative  (compos- 
ite).    In  unitary  forms  all  local  bodies  politic 

Classifica-  .  . 

tionby  that  unitedly  make  up  the  national  body  poli- 
^°"°"  tic,  obtain  their  governmental  power  directly 

or  indirectly  from  the  national  government  and  are  con- 
sequently entirely  under  its  control.  In  federative,  or, 
as  some  prefer  to  say,  composite  forms,  the  several  gov- 
ernmental units  that  unitedly  make  up  the  national  body 
politic,  have  a  constitutional  right  to  govern  themselves 
in  local  matters,  and  hence  to  that  extent  are  not  under 
the  control  of  the  national  government.  The  numerous 
federal  governments  of  modern  times  should  be  classi- 
fied under  this  head.  Akin  to  this  federative  form  of 
government  hi  which  sovereignty  mheres  in  the  unity 
but  not  in  the  units,  are  unities  of  sovereign  states 
organized  for  special  purposes,  such  as  confederations, 


THE   ORGANIZATION   OF   THE   STATE  121 

treaty  alliances  or  even  international  tribunals  or  unions, 
such  as  The  Hague  Tribunal  for  the  settlement  of  inter- 
national disputes,  or  the  Postal  Union  for  the  regulation 
of  postal  service  throughout  the  civilized  world.  Be- 
sides this  classification  by  form,  governments  may  be 
classified  as  monarchies  or  as  republics,  by  noting 
whether  the  head  of  the  government  be  hereditary  or 
elective;  or,  again,  as  centralized  or  decentralized,  by 
noting  whether  the  national  government  exercises  a  close 
supervision  or  control  over  the  administrative  systems 
of  local  bodies  politic,  as  in  France;  or  a  slight,  almost 
nominal,  control,  as  in  Switzerland  or  in  the  common- 
wealths of  the  United  States.  The  English  system  repre- 
sents a  type  intermediate  between  these  two  extremes. 
A  government,  furthermore,  may  be  called  direct  or 
indirect,  according  as  the  policy  of  the  state  is  de- 
termined in  the  main  by  the  electorate  itself  or  by  its 
representatives. 

In  addition  to  a  system  of  classification  by  form,  how- 
ever,  there  should   be   a  supplementary  classification 
emphasizmg  the  spirit   of   government.     The 
tion  based     govemmcnt  may,  for  example,  be  characterized 
°"*.^*,       as  despotic,  autocratic    or    constitutional;    as 

spirit  of  *  '  ^  _ 

govern-  aHstocratic  or  democratic;  as  conservative, 
™^°  ■  liberal  or  radical. 

If  emphasis  be  placed  on  the  spirit  of  government, 
a  practical  system  of  classification  can  be  obtained  by 
noting  the  degree  of  democratic  development  in  the 
nation.  This  may  be  indicated  in  several  ways:  (1)  by 
noting  the  ratio  of  the  electorate  to  the  whole  popula- 
tion,    A  system  of  unrestricted  manhood  suffrage  would 


122  THE   DEVELOPMENT   OF   THE   STATE 

approximately  give  one  voter  to  every  four  and  one  half 
persons  in  the  population. ^  As  the  ratio  rises,  the 
government  is  presumably  less  democratic.  (2).  If  the 
government  is  representative,  the  basis  of  representa- 
tion in  the  membership  of  the  lawmaking  body  may  be 
noted.  This  basis  may  be  hereditary  right  or  a  right 
based  on  office-holding  or  a  right  based  on  wealth;  or 
localities  irrespective  of  wealth  or  population  may  be 
represented  equally;  or  equal  masses  of  population 
may  form  the  basis  of  representation.  (3).  Possibly  the 
clearest  idea  of  the  spirit  of  government  may  be  had  by 
noting  the  body  that  has  the  legal  right  to  alter  at  will 
the  fundamental  law  of  the  land.  Such  a  body  may  be 
called  the  "legal  sovereign,"  2  and  may  be  composed 
of  the  electorate,  as  in  Switzerland,  or  of  a  lawmaking 
body,  as  in  Great  Britain;  or  may  be  in  the  hands  of  an 
hereditary  ruler,  as  in  Russia.  Under  such  a  classifica- 
tion the  ancient  Greek  terms  might  again  be  fomid  use- 
ful, and  governments  be  classified  as  in .  spirit  mo- 
narchical, aristocratic  or  democratic,  according  as  the 
power  of  legal  sovereignty  is  in  the  hands  of  one,  few  or 
many. 

In  future  years  states  will  probably  develop  funda- 
mental likenesses  through  conscious  and  unconscious 
assimilation  and  imitation,  and  at  that  time  a  more 
satisfactory  classification  will  be  possible.  Meanwhile, 
some  formal  system  of  classification  such  as  that  sug- 
gested above,  supplemented  by  terms  descriptive  of  the 

1  In  New  Zealand  with  adult  suffrage  the  ratio  of  voters  to  pop- 
ulation was  (1905)  1  to  1.8, 
^  See  Chapter  X. 


THE   ORGANIZATION   OF   THE   STATE  123 

spirit  of  government  will  be  found  satisfactory  enough 
for  ordinary  purposes.  ^ 

The  Federation 

The  importance  of  the  modern  federation  as  a  form  of 
governmental  organization  makes  it  worthy  of  special 
mention.  Confederations  have  been  known  from  the 
earliest  times,  beginning  with  confederated  hordes  and 
tribes  and  passing  on  to  confederations  of  village  com- 
munities, city  states  and  kingdoms.^  As  a  permanent 
form  of  political  organization,  however,  the  confedera- 
tion is  weak  and  inefficient.  There  is  no  real  unity,  the 
parts  are  practically  sovereign,  and  all  act  together  only 
at  times  of  great  crises.  Their  many  interests  are  so 
diverse  that  a  firm  and  definite  policy  becomes  impos- 
sible. Historically  confederations  end  by  falling  apart 
into  their  constituent  elem.ents,  or  come  under  the  con- 
trol of  some  dominant  member  and  gi'adually  become 
unified  in  sovereignty. 

Yet  in  government  there  is  real  need  for  a  form  that 
will  allow  kindred  communities  having  common  inter- 
ests to  retain  their  individuality  and  at  the 

Contrasted  .  •' 

with  con-  same  time  have  a  permanent  and  clearly  de- 
fined central  organization,  empowered  to  man- 
age on  its  own  initiative  all  general  economic  interests. 
This  device  was  developed  in  the  United  States  of 
America  by  changing  the  old  confederation  of  the  Revo- 

•  For  chapters  on  classifications,  see  e.  g.,  Willoughby,  Chapter 
XIII,  and  Bluntschli,  Book  VI. 

^  For  a  study  of  Greek  confederations,  see  E.  A.  Freeman's, 
"  Federal  Government." 


124  THE   DEVELOPMENT   OF  THE   STATE 

lutioii  into  the  present  federation.  The  distinction  be- 
tween these  two  forms  was  not  clearly  perceived  at  first, 
but  the  result  of  the  Civil  War  settled  it  for  all  time.  In 
a  confederation  the  several  states  composing  the  unity 
are  individually  sovereign,  and  are  merely  bound  to- 
gether by  a  sort  of  treaty  relationship,  under  the  terms 
of  which  a  joint  organization  is  effected  for  the  per- 
formance of  specified  functions  delegated  to  it.  As  each 
state  in  the  union  remains  sovereign  it  may  legally  se- 
cede at  pleasure,  influenced  only  by  the  fear  of  conse- 
quences in  case  it  violates  obligations  existing  between 
itself  and  the  other  states  of  the  confederation.  In  a 
federation,  however,  this  right  of  withdrawal  is  not 
claimed  by  the  commonwealths  in  the  union,  which  can 
only  be  dissolved  by  mutual  consent.  In  such  a  union 
the  sovereignty  of  the  several  states  merges  into  the 
sovereignty  of  the  totality  and  the  commonwealths 
cease  to  be  international  states.  They  differ,  however, 
in  status  from  provinces  or  departments  in  that  their 
autonomy  is  fully  safeguarded  by  constitution.  Fur- 
thermore, they  are  given  by  constitution  a  determining 
voice  in  the  federal  government  and  in  the  amendment 
and  revision  of  the  national  constitution.  In  a  federa- 
tion, therefore,  the  imity  is  permanent  and  definite,  not 
dissolvable  at  the  whim  of  one  or  several  of  its  parts, 
but  only  by  the  united  will  of  all.  Its  federal  govern- 
ment exercises  powers  that  cannot  be  hindered  by  in- 
dividual commonwealths,  and  that  must  be  altered  if  at 
all  by  united  action  under  the  constitution.  On  the 
other  hand,  the  commonwealths  of  the  federation  exer- 
cise sovereign  powers  in  purely  local  matters  without 


THE   ORGANIZATION   OF   THE   STATE  125 

interference  from  the  federal  government,  and  each  has 
a  voice  in-  the  settlement  of  all  matters  that  concern  the 
welfare  of  the  union  as  a  whole. 

The  advantage  of  a  federation  is  therefore  obvious. 

By  its  emphasis  on  local  autonomy  it  safeguards  local 

interests  and  allows  each  commonwealth  to 

Its  utility.  •        1  c         •        1  1  11 

govern  itself  as  it  pleases,  and  yet  by  the  estab- 
lishment of  a  permanent  central  government  empowered 
to  manage  without  interference  the  general  interests  of 
the  several  commonwealths,  it  allows  the  development 
of  an  immense  empire,  which  can  utilize  the  strength 
and  energy  of  all  the  parts  for  the  common  defense  and 
general  welfare.  In  this  age,  when  the  movement 
toward  the  formation  of  world  empires  is  so  marked,  a 
well-organized  federation  with  its  dual  form  of  govern- 
ment has  a  distinct  advantage  over  rival  empires.  These 
are  unwieldy  because  of  their  bulk  or  mechanical  because 
of  the  immensity  of  general  and  petty  interests  con- 
trolled by  a  central  organization.  This  fact  is  becoming 
increasingly  recognized  in  political  theories,  and  there 
is  in  consequence  a  strong  tendency  toward  the  forma- 
tion of  federations.  This  is  especially  seen  throughout 
the  American  continent  and  in  the  colonial  system  of 
Great  Britain.^ 

As  a  federation  necessitates  a  dual  form  of  govern- 
mental organization,  the  three  usual  departments  of 
government  will  in  consequence  be  duplicated.     Thus 

*  Existing  federations  of  importance  are  as  follows:  The  United 
States  of  America,  the  United  States  of  Mexico,  Argentina,  Vene- 
zuela, the  German  Empire,  the  Swiss  Confederation,  Austria- 
Hungary  and  the  British  colonial  federations  of  Canada,  Australia 
and  that  of  South  Africa. 


126  THE   DEVELOPMENT   OF  THE   STATE 

in  the  United  States  of  America  the  federal  government 
is  made  up  of  a  president,  a  congress  and  a  judicial  sys- 
The  dual  ^^™  Organized  under  the  supreme  court.  But 
form  of  the  forty-eight  commonwealths  also  unitedly 
govern-  represent  a  coordinate  part  of  government,  and 
ment.  ^.j^-g  jg  jT^2ide  up  of  the  governors  as  executive, 

the  legislatures  as  lawmaking  body  and  the  courts  as 
supreme  court  in  local  jurisdiction.  The  national  con- 
stitution is  not  the  constitution  for  the  federal  govern- 
ment only,  but  for  it  and  the  combined  commonwealths 
alike.  The  executive  for  the  United  States  of  America, 
therefore,  is  made  up  of  the  president  and  governors;  ^ 
the  lawmaking  body  is  composed  of  congress  and  the 
legislatures,  and  the  judicial  system  includes  the  su- 
preme courts  of  the  commonwealths  and  the  federal 
government.  This  may  be  illustrated  by  noting  that 
the  constitution  is  amended  by  the  joint  action  of  con- 
gress and  the  legislatures  as  the  lawmaking  body  for 
the  union  as  a  whole.  In  popular  discussions  this 
fact  is  often  obscured  or  confused,  and  the  federal  de- 
partment spoken  of  as  synonymous  with  the  United 
States  of  America,  but  a  moment's  reflection  shows 
that  this  is  a  loose  use  of  terms  and  without  legal  justi- 
fication. 

Other  federations  might  be  used  similarly  as  illustra- 
tions. A  federal  government  alone  is  never  the  com- 
plete government  of  its  state.  The  commonwealths 
with  their  special  governments  unitedly  form  a  coordi- 

^  From  the  international  standpoint  the  president  only  is  recog- 
nized by  foreign  states,  since  the  war  and  treaty  powers  are  in  his 
bands  and  the  commonwealths  as  such  have  no  international  status. 


THE   ORGANIZATION   OF  THE  STATE  127 

nate  part  of  the  government,  and  the  two  coordinate 
parts,  federal  and  local,  form  the  complete  government 
of  the  state. 

The  Departments  and  Functions  of  Government 

In  modern  states  the  government  is  usually  divided 
into  three  departments:  the  executive,  the  judicial  and 
Depart-  the  legislative.  Historically,  however,  the  last 
^vwn-  ^"^o  ^^^  developments  from  the  first,  which  is 
ment.  fundamental.     In  governmental  systems  these 

divisions  are  often  largely  formal  and  not  based  on 
an  exact  logical  separation  of  the  three  great  govern- 
mental functions.  The  executive  department,  for  in- 
stance, may  exercise  judicial  powers  through  a  series  of 
administrative  and  naval  and  military  courts,  or  it  may 
formulate  law  under  the  name  of  decrees  or  ordinances. 
On  the  other  hand,  a  lawmaking  body,  besides  judicial 
powers  over  its  own  membership,  or  over  certain  classes 
of  governmental  officials, ^  may  exercise  large  executive 
powers  by  dictating  the  personnel  of  executive  or 
administrative  organization. ^  A  judicial  department, 
also,  by  its  power  to  interpret  the  law  of  the  land,  may 
in  effect  alter  such  law  by  legal  fiction  or  by  strained 
interpretations  of  the  law  itself.  These  several  closely 
related  divisions  or  departments  of  government  unitedly 
exercise  such  sovereign  powers  of  the  state  as  may  be 
intrusted  to  them  by  constitution.    As  the  exercise  of 

•  By  impeachment,  for  instance. 

^  By  dictating  the  personnel  of  the  cabinet,  or  legislating  in 
respect  to  appointments  to  the  civil  service.  France  and  Great 
Britain  are  typical  illustrations. 


128  THE   DEVELOPMENT   OF   THE   STATE 

these  powers  is  the  work  or  function  of  government, 
such  activities  are  usually  called  governmental  func- 
tions. 

For  theoretical  purposes  the  functions  of  government 
may  be  divided  into  five  classes,  viz.,  the  deliberative, 
Classes  of  legislative,  executive,  administrative  and  judi- 
mJntTi'  ^i^^-  These  may  be  defined  as  follows:  (a) 
functions.  The  deliberative  function  is  to  determine 
what  is  the  will  of  the  state,  (b)  The  legislative  func- 
tion is  to  formulate  into  law  the  will  of  the  state,  (c) 
The  executive  function  is  to  see  that  the  laws  of  the  state 
are  carried  out.  (d)  The  administrative  function  is  to 
carry  out  the  laws  of  the  state,  (e)  The  judicial  func- 
tion is  to  interpret  the  law  and  to  adjudicate  its  reme- 
dies and  penalties.  Each  of  these  functions  will  now  be 
briefly  explained. 

(1)  In  every  state  there  will  always  be  one  or  more 
bodies  authorized  to  discuss  and  settle  on  a  policy,  which 
will  represent  the  desire  and  will  of  the  state.  This 
function  is  regularly  exercised  by  the  executive  through 
a  council  in  older  forms  of  government,  but  is  shared  by 
the  executive  and  legislative  departments  in  modern 
states.  At  present  the  function  of  deliberation  seems 
to  be  passing  into  the  power  of  special  bodies,  nominally 
controlled  by  the  executive  or  legislative  department,  or 
by  both,  but  for  all  practical  purposes  separate  and  dis- 
tinct. As  illustrations  may  be  noted  the  development 
of  a  cabinet,  after  the  English  fashion,  or  of  the  perma- 
nent committees  of  American  lawmaking  bodies,  whose 
chairmen  virtually  form  an  inner  cabinet  for  the  formu- 
lation of  legislative  policy;  or  even  the  rise  of  the  con- 


THE  ORGANIZATION   OF  THE   STATE  129 

stitutional  convention/  in  the  commonwealths  of  the 
United  States,  dictating  as  it  does  in  the  constitution  a 
legislative  policy  binding  on  the  legislature. 

(2)  This  policy,  when  agreed  on,  is  formulated  into  a 
command,  either  definitely  expressed  as  law  or  decree  or 
tacitly  expressed  and  made  known  through  actions  of  gov- 
ernmental officials.  Judicial  decisions,  for  example,  are 
in  effect  formal  notifications  of  what  the  law  of  the  land  is. 

(3)  The  executive  function  involves  the  exercise  of 
oversight,  coupled  with  the  power  to  compel  obedience 
to  the  law.  Naturally  this  function  is  chiefly  confided 
to  the  executive,  but  in  part  it  may  also  be  exercised 
by  the  legislative  and  judicial  departments. 

(4)  In  every  state  there  must  be  numerous  bodies  of 
officials  set  apart  for  the  performance  of  the  work  and 
routine  of  governmental  business.  These  bodies  collec- 
tively make  up  the  administration,  which  is  usually  placed 
under  the  direct  authority  of  the  executive  but  may  be 
more  immediately  under  the  control  of  the  lawmaking 
body.  By  law  the  control  over  judicial  administration 
is  regularly  placed  in  the  courts.  There  is  a  tendency 
in  modern  states  to  differentiate  the  organization  of  the 
administration  from  the  executive  department,  leaving 
to  this  only  a  general  power  of  supervision. 

(5)  The  judicial  function  is,  of  course,  chiefly  exer- 
cised by  the  judicial  (le]5artment,  if  one  be  organized,  or 
otherwise  by  the  executive.  But  some  judicial  power  is 
also  usually  exercised  by  the  executive  and  legislative 
departments,  even  though  there  is  in  organization  a 
formal  judicial  department. 

•See  pages  214,  217-218. 


130  THE   DEVELOPMENT   OF   THE   STATE 

Under  modern  conditions,  therefore,  even  though  in 
form  a  government  may  be  organized  into  one,  two  or 
three  departments,  there  will  regularly  be  found  distinct 
bodies  of  governmental  officials  respectively  performing 
one  or  several  of  the  fivefold  functions. 

Warfare,  the  primary  activity  of  the  state,  may  be 
used  as  a  simple  illustration  of  this  classification  of 
governmental  functions.  The  head  of  the  army  acting 
for  the  state  in  war,  first  deliberates  on  a  policy  or  plan 
of  action.  The  decision  when  made  is  announced  in  the 
form  of  a  command.  The  proper  officials  at  once  pro- 
ceed to  carry  out  the  details  of  the  plan  under  the  over- 
sight and  direction  of  the  head.  If  a  subordinate  should 
disobey  orders,  he  is  brought  to  trial,  his  disobedience 
and  the  extent  of  his  offense  are  shown  and  a  proper 
penalty  imposed.  These  fivefold  functions  are  involved 
in  every  complete  exercise  of  sovereignty,  whether  mani- 
fested in  primitive  or  in  modern  times. 

One  might  naturally  expect  that  there  would  be  five 
distinct  departments  of  government,  each  authorized  to 
Thede-  perform  one  of  the  five  classes  of  functions; 
veiopment    y^^^  -^^  practicc  such  a  formal  separation  would 

of  depart-  '^  ^ 

ments.  bc  impossiblc.  If  the  departments  of  govern- 
ment are  traced  historically,  it  will  be  found  that  in 
ancient  states  all  of  these  functions  were  exercised 
by  a  body  of  elders  or  by  a  king  aided  by  his  council. 
The  same  body  in  other  words  formulated  a  policy,  made 
it  into  a  decree,  carried  out  its  injunctions,  supervised 
the  performance  of  it  and  settled  finally  all  violations. 
At  later  stages  of  development  these  various  functions 
separate  or  differentiate  to  some  extent  and  are  per- 


THE   OROAXIZATIOX   OF   THE   STATE  131 

formed  by  different  sets  of  officials.  The  deliberative 
function,  for  instance,  may  be  exercised  by  a  special 
body  of  persons  who  would  personally  advise  the  king 
or  executive  as  his  council.  This  deliberative  power  may 
be  supplemented  by  adding  the  right  to  formulate  its 
decisions  into  law  (legislation)  on  approval  of  the  king. 
Again,  the  decision  of  judicial  questions  may  be  left  to 
picked  men  expert  in  the  law,  who  sit  on  the  king's  seat 
and  make  decisions  in  his  name.  Or,  lastly,  the  manage- 
ment of  certain  parts  of  the  administration  may  be 
transferred  to  responsible  and  capable  men,  who  would 
perform  their  functions  with  but  slight  control  or  inter- 
ference on  the  part  of  the  executive.  The  modern  gov- 
ernment in  its  formal  organization  usually  consists  of 
three  great  departments:  the  executive,  the  judicial  and 
the  legislative.  But,  as  already  mentioned,  in  ancient 
or  old-fashioned  states  there  is  usually  but  one  depart- 
ment, the  executive,  which  performs  all  of  the  functions 
of  government. 

Historically  this  department  arises  from  the  body 
of  elders  and  chiefs  found  in  early  primitive  associa- 
tions, such  as  the  horde.    These  natural  leaders 

The  execu- 
tive de-        guided  the  affairs  of  their  savage  communities, 

partment.  virtually  performing  the  usual  functions  of 
modern  governments.  They  knew  the  customs  and  an- 
nounced them  authoritatively,  they  led  or  chose  a  leader 
in  war,  administered  routine  business  and  adjudicated 
disputes.  As  the  patriarchal  stage  developed  and  the 
horde  passed  into  the  tribe,  this  body  of  elders  came  to 
consist  of  the  heads  of  families,  who  represented  the 
wealth  and  importance  of  the  several  domestic  groups  in 


132  THE   DEVELOPMENT    OF  THE  STATE 

matters  of  general  interest.  As  bonds  of  closer  unity 
developed,  the  head  of  the  leading  family  began  to 
assume  greater  prominence;  and,  as  the  ancestral  head 
of  the  entire  community,  he  gradually  assumed  the  re- 
sponsibility of  leadership  and  oversight,  aided  by  a 
council  made  up  of  the  heads  of  prominent  families.  As 
the  tribal  community  grew  in  wealth  and  importance 
with  the  growth  of  agriculture  and  commerce  or  by 
means  of  successful  war,  this  head  became  a  king,  ruling 
by  the  will  of  the  gods  and  hereditary  right.  At  a  later 
stage  he  was  himself  considered  a  god,  descended  from 
gods,  and  even  in  life  was  worshiped  as  a  divine  person. 
Such  a  system  of  government  would  naturally  develop 
into  despotism  on  the  part  of  the  king  and  abject  sub- 
missiveness  on  the  part  of  the  people. 

Evidently  in  a  state  of  any  wealth  and  importance, 

the  king  even  though  powerful  would  have  to  depend 

more  and  more  on  his  council  for  advice  and 

Limitations 

on  royal  f or  the  performance  of  governmental  functions. 
power.  Little  by  little,  to  these  important  officers  were, 
as  a  matter  of  fact,  delegated  large  powers  in  war,  in 
judicial  decisions,  in  religion  and  in  general  administra- 
tion. In  great  patriarchal  states,  therefore,  the  council 
became  a  deliberative  body,  which  in  the  king's  name 
formulated  policy,  transacted  business  and  rendered 
decisions  in  disputed  cases.  Under  such  a  system  the 
theory  of  despotism  might  survive,  but  the  thing  itself 
would  be  hedged  about  with  restrictions  placed  on  it 
by  the  influential  classes  in  charge  of  the  government. 
Such  a  monarchy  is  aristocratic,  the  real  power  being 
exerted  by  privileged  classes  of  clergy  and  nobility. 


THE   ORGANIZATION   OF  THE   STATE  133 

If  the  middle  and  commercial  classes  should  develop 

in  importance  through  increased  wealth  and  intelligence, 

then  these  also  would  have  a  growing  share  in 

ment  of  ad-  govcmment.    The  older  patrician  classes  wouVd 

ministra-      rescrvc  for  their  members  the  most  importaiiC 

tive  and  _  _ 

legislative  officcs  and  the  most  intimate  connection  with 
the  king,  but  would  share  with  the  influential 
members  of  the  newer  class  minor  offices  and  would 
consult  them  in  matters  that  directly  affected  their 
interests.  In  this  development  we  have  all  the  essentials 
for  modern  governmental  organization: 

(1)  There  is  a  king  at  the  head  of  the  state,  whose 
autocratic  powers  gradually  pass  to  a  council  made  up 
from  patrician  classes.  This  tendency  may  go  so  far 
that  the  king's  power  becomes  merely  nominal,  in  which 
case  he  may  be  removed  altogether  and  an  elected  head 
or  heads  take  his  place  as  in  the  oligarchical  aristocracies 
of  ancient  Greece  and  Rome. 

(2)  Increase  in  the  business  assigned  to  the  council 
compels  a  differentiation  of  work.  A  specialized  form  of 
work,  involving  much  routine  and  permanent  activity, 
is  transferred  to  the  charge  of  one  or  several  members  of 
the  council,  and  becomes  ultimately  a  department  of  ad- 
ministration. In  this  way  are  separated  one  after  the 
other  such  functions  as  religion,  justice,  war,  finance  and 
taxation.  At  the  same  time  the  council  as  a  whole,  or 
the  most  influential  members  of  it,  remains  as  a  delibera- 
tive body  having  oversight  over  public  interests  as  a 
whole.  This  is  the  ancestor  of  the  modern  cabinet, 
which  in  some  form  or  other  is  found  in  every  govern- 
ment.    As  the  business  and  activities  of  the  state  in- 


134  THE   DEVELOPMENT   OF  THE   STATE 

crease,  these  several  departments  of  administration  grow 
in  number  and  importance.  Each  itself  differentiates 
into  bureaus  or  divisions  and  the  whole  system  becomes 
a  hierarchy  of  carefully  graded  offices,  a  bureaucracy, 
nominally  under  the  supervision  of  the  head  of  the  state. 
The  principal  departments  are  regularly  represented  in 
the  council  by  their  most  important  officers,  who  thus 
perform  a  double  function,  serving  as  heads  of  adminis- 
tration and  as  advisers  to  the  king  or  president.  In 
France  there  is  a  sharp  distinction  between  the  cabinet 
of  ministers  in  their  advisory  capacity,  and  the  same 
persons  as  a  council  of  ministers  serving  in  an  admin- 
istrative capacity.^  Practically  all  continental  European 
states  have  their  administrations  separately  organized 
and  regulated  by  a  special  code  of  administrative  law 
and  a  special  system  of  courts. 

(3)  In  times  of  rapid  development  there  are  many 
changes  which  involve  increased  taxation  and  modifica- 
tions of  existing  law.  The  council  by  experience  learns 
the  wisdom  of  consulting  more  and  more  the  most  in- 
fluential persons  or  interests  affected  by  such  changes. 
Such  persons,  or  their  representatives,  thus  have  in  con- 
nection with  the  king  and  council  a  voice  in  the  determi- 
nation of  new  policies  or  modifications  of  old  ones.^  As 
this  system  develops,  it  may  evolve  into  a  lawmaking 
body,  as  in  England,  the  council  forming  an  upper  house 
or  chamber;  and  representatives  of  the  other  interests 

>  See  Wilson's  "State,"  p.  226,  ed.,  1898. 

^  As  modern  illustrations,  note  the  use  of  such  bodies  in  Russia, 
Turkey  and  Persia,  all  developed  within  the  first  decade  of  the 
twentieth  century. 


THE   ORGANIZATION   OF   THE   STATE  135 

in  the  state  forming  a  lower  house.  If  progress  in 
wealth  and  importance  continues,  this  lower  house  may 
develop  powers  so  large  as  virtually  to  deprive  the  upper 
house  of  its  supremacy,  i  In  this  case  the  government 
passes  into  the  hands  of  the  middle  classes  and  a  con- 
servative democracy  is  the  result,  even  though  in  form 
the  state  still  remains  a  monarchy. 

This  outline  of  governmental  development  illustrates 
in  a  general  way  the  usual  changes  resulting  from  a 
progressive  development  from  savage  communal  life 
down  to  the  modern  era  with  its  democracy  and  growing 
complexity  of  political  phenomena.  Naturally  there  are 
many  variations  in  detail  in  different  parts  of  the  world, 
but  in  a  fundamental  way  the  development  outlined 
will  hold  true  for  all  states  in  the  line  of  progress. 

As  Russia  within  the  last  few  years  has  promulgated 
through  the  czar  its  Fundamental  Laws,^  the  essential 
The  Funda-  points  of  thesc  may  be  stated  as  an  illustration 
mental        q£  ^  movcmcut  from  a  pure  autocracy  to  a 

Laws  of  I  J 

Russia.  constitutional  monarchy.  The  czar  is  declared 
by  law  to  be  the  supreme  autocrat,  his  authority  is 
ordered  by  God  Himself,  and  his  person  is  divine  and 
inviolable.  His  enormously  large  executive  powers  in- 
cluding the  right  to  determine  foreign  policy,  to  declare 
war  or  to  conclude  peace,  are  exercised  in  connection 
with  a  council  of  ministers  whom  he  appoints  or  removes 
at  pleasure,  and  one  of  whom  must  countersign  his 
orders  or  decrees.    The  chairman  or  president  of  this 

'  This  movement  at  the  present  time  (1909)  is  best  illustrated  by 
the  growing  power  of  lower  houses  in  Germany  and  in  Japan. 

^  See,  in  Bibliography,  Dodd,  "Modern  Constitutions,"  vol.  ii,  pp. 
182-195. 


136  THE   DEVELOPMENT   OF   THE   STATE 

council  is  directly  responsible  to  him  and  represents  him 
in  the  national  parliament.  He  reserves  for  himself 
the  initiative  in  legislation  in  respect  to  fundamental 
laws,  but  shares  with  a  bicameral  bod}^  meeting  annually 
other  legislative  powers,  reserving,  however,  the  right  of 
veto.  Furthermore,  he  appoints  one  half  the  member- 
ship of  the  upper  house,  the  council  of  the  empire,  and 
provides  for  the  election  of  the  other  half  for  a  nine-year 
term  by  representatives  of  the  great  interests  of  the 
state,  such  as  the  provincial  assemblies,  the  nobility, 
the  church,  the  universities  and  bodies  representative 
of  industrial  interests.  The  membership  of  the  lower 
house,  the  duma,  is  elected  for  a  five-year  period  by  a 
four-class  system,  made  up  of  landed  proprietors, 
municipal  voters,  peasants  and  laborers,  and  so  arranged 
as  to  give  a  preponderance  of  votes  to  the  wealthier 
classes.  In  addition  to  this  newer  organization  are  (1) 
the  ruling  senate  and  (2)  the  holy  synod;  the  first 
having  judicial  functions  chiefly,  and  the  authority  to 
promulgate  laws  when  properly  passed  by  the  parlia- 
ment and  approved  by  the  czar,  and  the  second  having 
jurisdiction  over  the  religious  affairs  of  the  empire. 

In  this  brief  outline  we  see  over  against  a  divinely 
appointed  autocrat,  the  separation  of  divisions  of  gov- 
ernmental powers  exercised  respectively  by  a  cabinet, 
a  national  church,  a  judicial  organization,  a  lawmaking 
body  and  an  electorate,  the  last  two  representing 
the  latest  additions  to  the  governmental  organization. 
Legal  sovereignty  is  still  vested  in  the  czar,  who  also 
reserves  final  authority  in  administration,  lawmaking 
and  judicial  decisions. 


THE   ORGANIZATION   OF   THE   STATE  137 

The  Separation  or  Differentiation  of  Powers 

The  development  of  these  several  divisions  of  govern- 
mental powers  has  furnished  to  students  of  political 
philosophy  two  important  theories,  that  of  the  separa- 
tion of  powers  and  the  check  and  balance  theory.  A 
brief  account  of  these  important  principles  may  prove 
useful. 

When  all  power  was  centered  in  the  hands  of  one  de- 
partment there  was  no  need  to  discuss  theories  in  re- 
Deveiop-  spcct  to  the  Separation  of  powers,  but  when  a 
ment  of  the  differentiation  really  had  taken  place,  then  some 
ofsepara-  explanation  was  necessary.  Aristotle  gave  us 
***"*•  the  first  formal  statement  of  it  when  he  di- 

vided governmental  functions  into  the  deliberative,  ad- 
ministrative and  judicial,  lawmaking  in  the  modern 
sense  being  almost  unknown  in  his  day.^  His  theory 
was  of  no  practical  use  under  the  autocratic  Macedonian 
and  Roman  empires  but  was  revived  during  the  Renais- 
sance and  played  some  part  in  the  political  discussions 
of  that  period.  In  the  eighteenth  century  Montesquieu 
in  his  study  of  the  English  constitution  came  to  admire 
that  system,  and  set  forth  in  his  ''Spirit  of  Laws"  ^  the 
advantages  of  a  separation  of  the  executive,  legislative 
and  judicial  powers.  He  argued  that  in  order  to  secure 
justice,  each  set  of  powers  should  be  placed  in  the  con- 
trol of  a  different  set  of  officials,  in  order  that  the  same 
officials  should  not  have  the  power  to  make  and  enforce 

1  "Politics,"  Book  IV,  Chapter  XIV.  Bohn's  Classical  Library- 
Edition. 

2  Book  XI,  Chapter  VI. 


138  THE   DEVELOPMENT  OF   THE   STATE 

the  law,  and  to  punish  infractions  of  it.  Rousseau  in 
his  "Social  Contract"  added  the  important  principle 
that  power  over  the  fundamental  law  should  always  rest 
with  the  people,  in  order  that  the  government  as  a  whole 
might  not  become  tyrannical.  The  theory  of  separa- 
tion has  become  a  democratic  principle,  though  its  ap- 
plication varies  considerably  in  different  states.  It  is 
carried  out  most  logically  in  the  American  national 
system,  in  which  the  three  departments  of  govern- 
ment are  by  law  coordinate  in  importance,  and  each 
is  as  independent  of  the  others  as  is  feasible  with 
the  unity  of  government.  In  other  states  there  is 
often  a  formal  but  not  a  real  separation,  in  that  some 
one  department  tends  to  dominate  the  others.  ^  The 
commonwealths  of  the  United  States  of  America  in 
their  constitutions  formally  separate  the  three  de- 
partments, but  by  an  illogical  assignment  of  powers 
often  fail  to  separate  them  in  fact.^  In  New  York, 
for  example,  the  executive  has  a  great  deal  of  control 
over  legislation,  while  in  Rhode  Island  the  assembly 
controls  almost  all  of  the  executive  functions,  and  in 
addition  elects  the  judiciary. 

The  usual  powers  held  by  the  three  departments,  re- 
spectively, are  as  follows: 

I.  The   executive    department  has    (1)    the   power  to 

'  Note,  for  example,  the  dominance  of  the  lawmaking  body  in 
Great  Britain  and  France. 

2  See,  as  an  example  of  formal  separation,  the  Massachusetts 
constitution,  Part  I,  Article  XXX. 

"In  the  government  of  this  commonwealth  the  legislative  depart- 
ment shall  never  exercise  the  executive  and  judicial  powers,  or 
either  of  them ;  the  executive  shall  never  exercise  the  legislative  and 


THE  ORGANIZATION   OF   THE   STATE  139 

represent  the  dignity  and  personality  of  the  state;  (2) 
war  powers,  inchiding  management  of  the  army  and 
navy,  and  the  power  of  declaring  war  and  making  peace ; 
(3)  general  oversight  of  the  entire  organization  of 
The  usual  ^^^  government,  involving  the  right  to  take 
powers  of  the  initiative  in  action  in  case  of  sudden  emerg- 
depart-  cncy;  (4)  headship  over  the  administration; 
ments.  ^^^  ^j^^  powcr  of  appointment  to  all  important 
offices  under  the  state. 

II.  The  lawmaking  department  has  (1)  the  power  to 
decide  what  is  and  what  should  be  the  law  of  the  land; 
(2)  the  power  to  determine  the  amount  and  kind  of  taxes 
to  be  levied  and  to  control  the  levying  and  expenditure 
of  these.  Legislative  bodies  generally  share  with  the 
executive  the  power  to  determine  the  policy  of  the  state, 
both  domestic  and  international,  and  of  general  over- 
sight over  public  welfare. 

III.  The  judicial  department  has  (1)  the  power  to 
interpret  the  law  so  as  to  apply  its  remedies  and  pen- 
alties in  all  cases  submitted  to  the  courts  for  decision; 
(2)  in  the  United  States  of  America  the  courts  have 
the  power  to  decide  finally  the  meaning  and  authority 
of  the  law  in  all  judicial  cases  that  arise,  even  though 
such  decisions  practically  involve  the  nullifying  of  laws 
or  rules  made  by  the  legislative  and  executive  de- 
partments. 

Manifestly  it  would  be  absurd  to  separate  the  three 
usual  divisions  of  government  so  far  as  to  make  each 

judicial  powers,  or  either  of  them;  the  judicial  shall  never  exercise 
the  legislative  and  executive  powers,  or  either  of  them ;  to  the  end  it 
may  be  a  government  of  laws  and  not  of  men." 


140  THE   DEVELOPMENT   OF   THE   STATE 

entirely  independent  of  the  others.  In  order  to  avoid 
such  a  chaos  of  authority  and  to  unify  governmental 
powers,  a  system  of  checks  and  balances  has  developed 
in  all  modern  governments,  though  worked  out  most 
carefully  in  the  United  States  of  America. 
Checks  and  rpj^^  theory  of  checks  and  balances  goes  back 

balances.'  ''  ° 

to  ancient  times,  since  it  was  fully  discussed  by 
Aristotle,  Polybius  and  Cicero  some  two  thousand  years 
ago.  The  fundamental  idea  is  that  in  a  state  there  are 
always  diverse  interests  finding  expression  in  the  govern- 
ment, and  that  no  one  of  these  should  become  so  power- 
ful as  to  have  the  others  completely  at  its  mercy.  This 
thought  is  applied  later  in  connection  with  the  theory  of 
the  separation  of  powers  so  as  to  develop  a  system 
whereby  each  separate  division  of  government  might  be 
controlled  by,  and  in  return  control,  the  other  divisions. 
In  this  way  each  division  checks  the  others  if  they 
become  tyrannical,  and  is  itself  checked  by  similar 
powers  held  by  the  other  divisions.  Thus  a  bill  of 
rights  inserted  in  the  fundamental  law  is  a  check 
on  possible  governmental  tyranny  against  subjects; 
the  power  of  removal  for  cause,  and  of  pardon,  in 
the  hands  of  the  executive,  is  a  check  on  vicious 
judicial  decisions.  In  the  same  way  the  veto  power 
checks  a  legislature,  and  its  power  of  impeachment 
may  check  abuses  of  power  on  the  part  of  the  execu- 
tive and  the  judiciary.  In  a  federal  system  the  consti- 
tution generally  arranges  an  elaborate  series  of  checks, 
so  as  to   safeguard   the   commonwealths    against    the 

^  See  Montesquieu,   "Spirit   of  Laws,"  Book  XI,    Chapter    IV; 
Blackstone's  'Commentaries,"  Book  I,  Chapter  II. 


THE   ORGANIZATION   OF  THE   STATE  141 

federal  government,  and  the  government  against  the 
commonwealths. 

The  theory  of  the  separation  of  powers  has,  however, 
a  larger  application  in  modern  times  than  is  generally 
supposed.  Government  has  become  much  more  com- 
plex since  the  eighteenth  century  announced  its  inter- 
pretation of  the  theory,  and  complexity  always  involves 
added  differentiation. 

Attention  has  already  been  called  to  the  fact  that 
administration  is  rapidly  differentiating  from  the 
Thesepa-  exccutive  fuuction.  Modern  governmental  ad- 
ration  of      ministrative  svstems  with  their  administrative 

adminis- 
tration,       law,  administrative  courts  and  fixed  tenure  of 

office  are  virtually  units  in  themselves  and  connected 
in  a  shadowy  sort  of  wny  only  with  the  executive. 
It  is  a  mere  matter  of  time,  therefore,  before  such 
states  as  France,  for  example,  will  speak  of  four  de- 
partments of  government,  and  name  as  a  fourth  the 
administration. 

Again,  up  to  the  nineteenth  century,  very  few  laws 
were  made  by  la^vTuaking  bodies  and  the  few  which 
were  made  were  fundamental  in  importance, 
solwefgn  -^or  the  last  hundred  years,  however,  law- 
making bodies,  especially  in  the  United  States, 
have  assiduously  devoted  themselves  to  the  annual 
multiplication  of  laws  mostly  in  respect  to  matters  of 
small  importance.  Unwise  and  petty  legislation  is  so 
characteristic  of  modern  legislators  that  they  seldom 
enjoy  public  confidence.  In  consequence,  a  special  law- 
making body  has  developed,  the  Constitutional  Con- 
vention, authorized  in  conjunction  with  the  electorate 


142  THE   DEVELOPMENT   OF   THE   STATE 

to  make  the  fundamental  law  of  the  written  constitution, 
Tliis  has  become  a  most  efficient  check  on  legislative 
incompetency,  as  the  personnel  of  conventions  is  regu- 
larly high  and  the  law  they  formulate  serves  as  a  check 
and  regulation  on  statutory  legislation.  In  the  United 
States,  therefore,  lawmaking  has  differentiated  into  two 
parts :  the  fundamental  law  of  the  written  constitution, 
and  statutes  or  ordinances  made  by  ordinary  legislatures 
and  local  coimcils.  For  this  reason  it  would  be  entirely 
proper  to  speak  of  another  department  of  government, 
the  legal  sovereign,  and  to  define  the  term  as  "  that  person 
or  body  of  persons  having  the  legal  right  to  make,  revise 
or  amend  the  constitution  of  the  state."  ^ 

But  this  is  not  all;  in  the  United  States  of  America 
alone  of  all  states,  the  supreme  courts  have  final  decision 
The  su-  ^s  to  the  meaning  of  national  or  local  constitu- 
preme         tious,   SO   that  all  laws  conflicting  with   the 

court  as  .  ^       ,  .        . 

final  in-  declared  meanmg  of  the  constitution  are 
thereon- ''^  virtually  pronounced  by  the  courts  to  be  null 
stitution.  and  void.  As  court  dockets  grow  in  length, 
there  is  a  developing  tendency  to  delegate  to  inferior 
courts  of  appeal  for  final  settlement  all  cases  that  do  not 
involve  an  authoritative  interpretation  of  the  constitu- 
tion. The  time  may  not  be  far  distant,  therefore, 
when  in  the  United  States  that  will  be  practically  the 
sole  function  of  its  supreme  courts,  and  this  change 
would  make  them  in  essence  a  department  of  gov- 
ernment separate  and  distinct  from  the  ordinary  judicial 
system. 

There  is,  however,  a  most  important  separation  of 

1  See  Chapter  X. 


THE   ORGANIZATION   OF   THE   STATE  143 

power  in  development  that  regularly  escapes  the  notice 
of  political  theorists.  One  of  the  most  puzzling  prob- 
lems in  all  political  science  is  to  ascertain  what  writers 
mean  who  speak  of  "ultimate  sovereignty,"  "the  loca- 
tion of  sovereignty"  or  " popular  sovereignty."  As  a 
rule,  such  writers  become  confused  by  trying  to  harmo- 
nize an  ethical  principle  borrowed  from  natural 
electorate  ^iglits  and  the  social  contract  theory,  to  the 
effect  that  a  people  should  control  sovereign 
powers,  with  legal  conditions  entirely  at  variance  with 
the  principle.  Outside  of  Switzerland  it  would  be  hard 
to  show  any  state  of  which  it  can  legally  be  said  that  the 
people  possess  full  sovereign  powers. 

In  place,  therefore,  of  ethical  discussion  as  to  whether 
the  people  should  or  should  not  rule,  attention  might 
better  be  fixed  on  a  neglected  department  of  government, 
viz.,  the  electorate.  The  powers  of  the  electorate  are  as 
truly  governmental  as  are  the  powers  of  the  usual  three 
departments.  Through  the  suffrage,  it  exercises  the 
executive  power  of  appointment,  through  the  use  of  the 
initiative  and  the  referendum  it  may  exercise  large  and 
important  lawmaking  powers,  and  b}^  its  right  of  jury- 
service  it  aids  the  judiciary  in  the  settlement  of  civil 
and  criminal  cases. 

If  the  electorate  should  include  all  adult  citizens,  male 
and  female,  and  by  election  appoint  all  important 
executive  and  administrative  heads,  all  lawmakers,  and 
all  judges,  and  should  have  over  these  the  right  of  in- 
struction, and  of  recall;  and  if  it  had,  as  in  Oregon, 
Oklahoma  and  Switzerland  the  right  of  initiative  and 
referendum  even  in  respect  to  the  constitution,  then  one 


144  THE   DEVELOPMENT   OF  THE   STATE 

might  properly  say  that  the  electorate  voicing  the  will 
of  the  people,  had  in  its  hands  the  sovereign  powers  of 
the  state.  As  a  matter  of  fact,  electorates,  as  a  rule,  have 
comparatively  few  powers  and  are  made  up  of  male 
citizens  only,  and  seldom  of  all  of  these.  In  no  legal 
sense,  therefore,  can  it  be  asserted  that  the  people  are 
legally  sovereign,  unless  by  exception  to  the  rule.^  If, 
however,  it  seems  desirable  to  favor  such  a  form  of  gov- 
ernment, attention  must  be  fixed  on  the  electorate,  its 
membership  enlarged  by  the  extension  of  suffrage  and 
its  powers  added  to  by  increasing  its  control  over  law 
and  administration.  If,  however,  aristocracy  is  favored 
rather  than  democracy,  its  membership  should  be  re- 
duced and  its  governmental  powers  minimized. 

If  one  were  to  define  the  term  government  more 
exact}}^  in  harmony  with  this  explanation  of  govern- 
A  broader  mental  Organization  and  differentiation,  it 
definition     might  be  said  to  be  the  sum  total  of  those 

of  govern-  ° 

ment.  organizations   that   exercise  or  may  exercise 

the  sovereign  powers  of  the  state. 

Since  all  the  sovereign  powers  of  the  state  may  be 
exercised  through  the  following  departments,  singly 
or  collectively,  the  government  may  be  thus  tabulated : 

1  The  executive,  from  which  is  differentiating  the 

2  Administrative. 

3  The  lawmaking  department,  from  which  should  be 
distinguished  the 

4  Legal  sovereign. 

'  In  political  ethics,  of  course,  it  may  be  argued  that  the  people 
have  a  "right  of  revolution,"  but  legally  there  is  no  such  right,  and 
revolutionists  are  technically  rebels. 


THE   ORGANIZATION   OF   THE   STATE  145 

5  The  judicial  system,  from  which  is  separating  (in 
the  United  States) 

6  A  special  court  for  the  authoritative  interpretation 
of  the  written  constitution. 

7  The  electorate,  which  is  steadily  increasing  its  pow- 
ers at  the  expense  of  the  three  historic  departments  of 
government. 

Doubtless  for  many  years  to.  come  text-books  and 
theorists  will  continue  to  discuss  the  threefold  division 
of  governmental  organization,  but  in  this  age  of  govern- 
mental differentiation  it  is  well-nigh  impossible  to  get  a 
clear  understanding  of  government  unless  one  considers 
the  electorate  as  a  fourth  department.  Furthermore, 
much  more  exactness  in  theorizing  would  be  attained 
by  separating,  mentally  at  least,  the  legal  sovereign  from 
the  other  departments  of  government.  The  differentia- 
tion of  administration  from  the  executive  is  almost  an 
accomplished  fact  on  the  continent  of  Europe.  The  re- 
maining specialization  is  peculiar  to  the  United  States  of 
America  and  deserves  special  attention  because  of  its 
political  importance,  for  if  the  supreme  court  of  the 
federal  department  ultimately  devotes  itself  only  to 
final  interpretations  of  the  constitution,  the  party  affilia- 
tions of  its  bench  will  become  a  matter  of  increasing 
concern. 

SPECIAL   REFERENCES 
General    Studies    of    Development    of    State :    Bluntschli    and 

WOOLSEY. 

Comparisons  of  States:  Bryce,  Burgess  (vol.  ii),  Dodd,  Low, 
Lowell,  W.  Wilson;  The  "Statesman's  Year  Book." 


146  THE   DEVELOPMENT   OF   THE   STATE 

Separation  of  Powers:  Bondy;  discussion  in  "  Federalist  "  (Nos. 

47-51  inclusive). 
The  Federation:  Hart,  American  Historical  Association,  1896, 

pp.  391-454;  E.  C.  Burnett,  "The  Government  of  Federal 

Territories  in  Europe."   The  general  works  referred  to  at 

end  of  Chapter  III  may  also  be  consulted. 


CHAPTER  VII 

THE    EXECUTIVE    DEPARTMENT    AND    ITS    POWERS 

If  we  examine  more  closely  the  functions  of  the  so- 
called  executive  department,  we  shall  see  that  broadly 
speaking  there  are  two  distinct  sets  of  functions: 

(1)  The  head  of  the  executive  department  represents 
the  unity  and  personality  of  the  state  in  the  conduct  of 

^     governmental  functions,  both  domestic  and  in- 

Powers  of       "  ' 

theexecu-  tcmational.  As  the  titular  head  of  the  state 
he  acts  as  mouthpiece  for  the  state  in  its  inter- 
course with  its  subjects  and  with  the  representatives  of 
foreign  states.  In  performing  the  latter  duty  he  con- 
ducts diplomatic  negotiations,  is  in  command  of  the 
army  and  navy,  declares  war,  makes  peace,  negotiates 
treaties,  receives  and  sends  diplomatic  embassies  and 
appoints  all  officials  who  assist  in  these  duties.  As 
representative  of  the  state  in  its  intercourse  with  its 
subjects  he  from  time  to  time  makes  announcements  of 
policy,  ijispects  the  workings  of  the  governmental  sys- 
tem and  makes  or  recommends  improvements. 

(2)  The  performance  of  governmental  functions  in- 
volves a  vast  mass  of  administrative  machinery,  com- 
plicated in  its  mechanism,  and  expensive  and  cumber- 
some in  its  workings.  The  head  of  the  executive  is  also 
the  head  of  the  administration;  as  such,  he  appoints  its 
officers,  organizes  its  departments,  assigns  to  each  its 

147 


148  THE   DEVELOPMENT   OF   THE   STATE 

respective  functions  and  oversees  the  working  of  the 
entire  administration,  enforcing,  if  necessary,  his  orders 
and  the  law  of  the  land  by  means  of  the  war  and  police 
powers  placed  in  his  hands.  In  this  way  he  maintains 
peace  at  home  and  abroad,  makes  war,  suppresses  insur- 
rections if  necessary,  and  supervises  the  entire  workings 
of  government  so  as  to  insure  the  prosperity  and  de- 
velopment of  the  state. 

Powers  so  enormous  are  too  onerous  and  arduous  for 
one  man,  and  hence  there  have  developed  numerous  de- 
vices intended  either  to  lighten  his  burdens  or  to  check 
his  power.  These  will  be  explained  in  connection  with 
discussions  in  regard  to  the  development  and  powers  of 
cabinets  and  of  the  judicial  and  lawmaking  departments. 

Headship  of  the  State 

All  states  develop  in  accord  with  the  same  laws,  but 
there  are  variations  in  development  owing  to  differing 
conditions.  Yet  the  process  is  so  similar  that  a  type  of 
governmental  development  can  be  set  forth  which  is 
pnactically  identical  every  where.  The  starting  point  is 
the  body  of  older  and  wiser  men  found  at  the  head  of 
the  group  in  all  early  systems  of  organization.  This 
body  may  consist  of  men  eligible  because  of  age  and  con- 
sequent wider  experience  and  knowledge;  or  of  heads  of 
smaller  groups  such  as  families  or  war  bands;  or  of  men 
who  by  natural  talent  have  shown  themselves  worthy  of 
a  place  in  the  council.  Among  these  the  oldest  or  the 
wisest  or  the  head  of  the  leading  group  or  the  most 
capable  leader  in  battle  would  naturally  gravitate  to 
the   headship,  whether  attained  by  right  of  birth,  by 


EXECUTIVE  depart:\ient  and  its  powers    149 

free  choice  or  by  force.  In  this  council,  with  its 
head,  we  have  the  beginnings  of  modern  poUtical  or- 
ganization, the  development  of  which  will  now  be  in- 
dicated. 

The  head,  as  already  suggested,  might  attain  his  su- 
premacy through  force.     History  is  filled  with  records 
of  great  leaders  who  by  their  ability  in  war 
Rise  of        have   founded   states   and   dynasties.     Under 

monarchy.  -^ 

these  circumstances  it  is  a  natural  tendency  for 
such  a  leader  to  seek  to  hand  on  his  power  to  the  mem- 
bers of  his  own  family,  an  ambition  readily  suggested  by 
the  hereditary  rights  of  the  fathers  in  a  patriarchal  sys- 
tem. Even  if  the  head  of  a  state  were  chosen  by  the 
free  votes  of  the  council,  the  natural  fondness  for  power 
inherent  in  the  human  heart  would  tend  to  develop  in- 
trigues for  the  perpetuation  of  power  in  the  family.  In 
this  way  there  developed  in  all  kinds  of  political  groups 
hereditary  rule,  based  on  the  analogy  of  the  patriarchal 
system  and  appropriating  from  it  its  notion  of  divine 
right  and  authority.  From  the  council  were  selected 
intimate  advisers,  personal  attendants  and  assistants 
in  the  administration  of  business.  As  the  wealth  and 
power  of  the  state  increased,  and  leadership  became 
kingship,  these  classes  of  officials  developed  definite 
functions  as  a  court  retinue,  as  an  advisory  cabinet  and 
as  heads  of  administrative  departments.  Among  these 
offices  came,  gradations  in  importance  as  system  and 
differentiation  became  necessary.  This  gave  to  the 
cabinet  a  chief  or  prime  minister.  All  these  offices  at 
the  beginning  were  under  the  control  of  the  king,  who 
might  appoint  or  remove  at  pleasure.     But  the  desire 


150  THE   DEVELOPMENT   OF   THE   STATE 

for  hereditary  power  influenced  office-holders  also.  Many 
of  the  most  important  offices  became  hereditary,  result- 
ing in  the  rise  of  a  class  of  nobility,  holding  wealth  and 
office  by  inherited  right,  and  steadfastly  supporting 
royal  power  as  essential  to  their  own.  The  rise  of  the 
church  in  importance  developed  a  similar  class  among 
the  superior  priesthood,  who  also  faithfully  supported 
the  king  in  return  for  his  promotion  of  ecclesiastical  in- 
terests. This  furnishes  us  the  type  for  an  autocratic 
monarchy,  whose  head,  ruling  by  hereditary  and  divine 
right,  was  deemed  a  mouthpiece  and  vicegerent  of  the 
gods,  and  who  might  himself  become  a  god  at  his  death. 
Changes  of  dynasty  might  take  place,  kingship  founded 
on  divine  right  might  become  a  theocracy,  the  ranks  of 
the  nobility  and  of  the  priesthood  might  be  recruited 
from  capable  men  of  lower  ranks,  but  whatever  the  dif- 
ferences in  detail,  such  autocratic  monarchies  developed 
in  many  parts  of  the  world,  ruling  millions  of  people  and 
inculcating  into  men's  minds  principles  of  law,  order, 
submissiveness  and  respect  for  authority.  Japan,  Siam 
and  Persia  in  the  East,  and  Russia  ^  in  the  West  illus- 
trate the  existing  states  of  this  sort. 

Kingship  has  played  so  important  a  part  in  the  politi- 
cal history  of  the  human  race  that  the  present  tendencies 

in  regard  to  that  office  are  well  worth  noting, 
^ower         ^^  early  political  systems  the  king  was  merely 

'primus  inter  pares  and  exerted  an  influence  pro- 
portionate to  the  strength  of  his  personality  and  his 
ability  in  action.     In  despotic-autocratic  systems  he  was 

'  See  Yale  Review,  vol.  xiv,  p.  117,  "The  Secret  of   Autocracy; 
the  Absolutism  of  the  Czar,"  A.  P.  Dennis. 


EXECUTIVE   DEPARTMENT   AND  ITS   POWERS     151 

by  theory  supreme,  irrespective  of  his  capacity  or  per- 
sonahty.  In  practice,  however,  there  were  hmitations 
that  often  made  the  king  a  mere  puppet.  Etiquette  and 
ceremony,  rehgious  requirements,  customs  and  prece- 
dents of  long  standing,  all  fettered  his  individuahty  and 
repressed  his  initiative.  Again,  the  necessity  of  delegating 
to  others  the  business  of  the  state,  and  of  depending  on 
them  or  secret  service  for  knowledge  of  conditions  ham- 
pered him.  The  red  tape  of  a  bureaucratic  system  was 
omnipresent  and  secret  influences  were  always  at  work 
to  thwart  or  to  dethrone  him.  Enervating  luxury  and 
sensual  temptations  were  at  his  command,  and  it  is  not 
at  all  strange  that  autocracy  tends  to  be  a  dreary  record 
of  tyranny,  misrule,  extortion  and  oppression. 

Again,  the  system  conspired  to  make  him  ruler  in 
name  only,  and  to  transfer  the  real  power  to  others  eager 
,.   .     .      for  their  own  advancement.     As  a  matter  of 

Limited  by 

constitu-  fact,  the  power  actually  exerted  by  an  auto- 
cratic king  is  not  to  be  compared  with  the  power 
exerted  by  the  executive  of  a  modern  state.  The  one 
exerts  power  in  a  spasmodic,  spectacular  way,  but  the 
other,  knowing  just  what  he  can  and  cannot  constitution- 
ally do,  exerts  a  powerful  continuous  influence  within  his 
sphere  that  far  outweighs  the  irregular  activities  of  a 
monarch  theoretically  autocratic  but  practically  re- 
stricted on  every  hand  in  matters  of  importance.  The 
movement,  therefore,  already  outlined,  whereby  the  larger 
part  of  the  autocratic  powers  of  modern  rulers  has  been 
transferred  to  the  other  departments  of  government,  does 
not  imply  that  the  executive  head  has  really  lost  power. 
It  means  that  his  authority  has  been  restricted  to  activ- 


152  THE   DEVELOPMENT   OF   THE   STATE 

ity  along  certain  definite  lines,  but  within  those  bounds 
he  may  happen  to  exercise  a  totality  of  powers  far  in  ex- 
cess of  the  amount  of  power  exerted  by  his  autocratic 
predecessors.  This  is  even  more  true  because  of  the  re- 
markable extension  of  governmental  activity  within  the 
last  one  hundred  years.  The  executive  power  of  the 
President  of  the  United  States  of  America  i"s  an  excellent 
illustration  of  this  principle.  He  exerts  a  far  wider  and 
more  powerful  influence  than  the  Czar  of  Russia,  and 
probably  wields  more  authority  than  any  other  execu- 
tive on  earth.  Even  the  King  of  England,  shorn  ap- 
parently of  all  his  authority,  probably  exerts  a  deeper 
influence  over  the  affairs  of  the  empire  than  does  the 
czar,  who,  though  by  theory  autocratic,  is  yet  checked 
on  every  side  by  a  powerful  bureaucracy  and  is  re- 
pressed by  constant  fear  of  assassination. 

The  existing  governments  of  the  world  well  illustrate 
the  various  stages  of  royal  authority  and  headship. 
Types  of  Tribal  rule  is  common  among  the  native  races 
govern-       q£  South  America,  Africa  and  northern  Asia. 

mental  ... 

headship.  Patriarchal  authority  is  well  illustrated  in  the 
petty  principalities  of  India;  divinity  in  kingship  is  seen 
in  Japan  and  Siarri,  and  to  some  extent  in  such  states 
as  Russia  and  Turkey.  The  empire  of  Austria-Hungary 
furnishes  a  good  illustration  of  autocratic  kingship  tend- 
ing toward  constitutionalism,  Germany  illustrates  a 
stage  further  in  this  development,  and  Great  Britain  has 
developed  constitutional  kingship  to  its  fullest  extent. 
When  kingship  has  been  superseded  by  an  elective  head- 
ship, similar  variations  in  power  are  possible.  The 
President  of  Mexico  is  practically  an  autocrat  ruling 


EXECUTIVE   DEPARTMENT   AND   ITS   POWERS     153 

under  the  forms  of  a  republic,^  the  President  of  the 
United  States  of  America,  as  ah'eady  indicated,  is  per- 
haps the  most  powerful  of  modern  rulers,  yet  his  powers 
are  delegated  and  named  in  the  constitution,  and  he 
could  easily  be  removed  if  he  tried  to  become  despotic. 
The  President  of  France,  like  the  English  king,  is  a 
nominal  ruler  of  few  powers,  though  in  form  and  by  in- 
tention the  office  was  made  powerful;  the  President  of 
Switzerland  is  merely  the  chairman  of  an  executive  com- 
mittee which  administers  executive  functions  under  the 
direction  of  the  federal  assembly.  It  is  evident  that 
under  present  conditions  the  type  toward  which  all 
modern  states  seem  to  be  tending  is  a  headship  vested  in 
an  hereditary  monarch  or  in  an  elected  president,  whose 
powers  in  either  case  will  be  carefully  defined  by  con- 
stitution, and  hedged  about  with  numerous  restrictions 
aiming  to  secure  responsibility  and  efficient  service  in 
behalf  of  the  citizen  body. 

The  Cabinet 

Changes  in  the  executive  department  of  government 
are  clearly  illustrated  by  the  three  great  systems  of 

cabinets  existing  in  modern  times.  As  the 
cradctype.    business  of  the  state  increases  in  amount  and 

complexity,  numerous  departments  are  formed, 
each  devoting  itself  to  some  special  line  of  administra- 
tive activity.  Some  of  these  departments  will  naturally 
be  more  important  than  others,  and  the  heads  of  these 
must  frequently  consult  with  the  head  of  the  state  in 

'  Note  Yale  Review,  vol.  xii,  p.  231,  R.  L.  Rowe,  "Administrative 
Centralization  in  Mexico." 


154  THE   DEVELOPMENT   OF   THE   STATE 

making  important  decisions.  These  influential  heads 
form  the  nucleus  about  which  the  king  will  center  his 
advisory  council,  formed  by  adding  such  persons  as  seem 
worthy  on  account  of  their  wisdom  and  standing  in  the 
community.  In  such  a  system  as  this  we  have  a  council, 
able  to  give  the  king  both  general  and  special  advice, 
whose  members  are  appointed  by  him  and  are  responsi- 
ble only  to  him.  Such  a  council  may  divide  into  sections, 
in  which  case  the  cabinet  will  be  the  inner  circle  that 
regularly  advises  the  king  in  the  most  important  affairs 
of  the  kingdom.  The  Russian  system  of  the  nineteenth 
century  well  illustrates  this  first  type  of  cabinet  govern- 
ment. 

In  Great  Britain  the  dominant  party  in  the  house  of 
commons  names  its  party  leader  to  the  king,  who  must 
rj.^^  according  to  precedent  appoint  him  as  prime 

English  minister.!  The  prime  minister  then  recom- 
*^^**  mends  to  the  khig  suitable  men  to  head  the 

various  departments  and  selects  from  these  the  most  im- 
portant to  form  a  cabinet.  This  cabinet,  led  by  the 
prime  minister,  formulates  national,  executive  and  legis- 
lative polic)'-  and  has  in  charge  the  general  management 
of  the  empire.  As  long  as  the  cabinet  can  control  a 
majority  in  the  house  of  commons  it  remains  in  power. 
If  defeated  on  some  fundamental  question  of  policy  it 
resigns,  a  new  election  takes  place  and  the  successful 
party  as  before  assumes  the  reins  of  power. 

The  third  type  of  cabinet  is  that  of  the  United  States 
of  America.  A  president,  newly  elected,  receives  the 
resignations  of  all  administrative  heads  of  departments. 
'  Technically,  of  course,  there  is  no  such  office. 


EXECUTIVE   DEPARTMENT   AND   ITS  POWERS     155 

He  then  with  the  approval  of  the  senate  fills  the  vacan- 
cies from  the  ranks  of  his  own  party,  paying  special  atten- 
tion  to   those  departments  whose  heads  will 

The  .  .  .     ■,  . 

American     fomi  liis  cabmet.     The  president  is  himself  re- 
^^^^'  sponsible  for  executive  policy  and  administra- 

tion; this  cabinet  therefore  meets  at  his  call,  discusses 
such  busmess  as  he  may  submit  to  it,  the  president  then 
forming  his  owii  decisions  irrespective  of  the  expressed 
opinion  of  the  cabinet.  The  influence  of  these  heads  of 
departments  in  formulating  national  policy  is  negative 
and  is  merged  m  the  responsibility  of  the  president.  The 
chief  functions  of  the  cabinet  officers  are  m  the  adminis- 
tration of  their  great  departments,  but  even  in  these  they 
are  subordinate  to  the  president  who  may  overrule  their 
policies  if  he  so  desires.  The  Russian  and  the  American 
systems  are  alike  in  that  the  head  of  the  state  appoints 
his  cabinet  at  will  and  uses  these  officers  as  his  advisers 
and  assistants.  The  English  and  American  systems  are 
alike  in  that  executive  power  is  based  on  popular  election 
and  depends  for  its  .continuance  on  the  votes  of  the 
electorate.  In  all  three  systems  cabinet  officers  are 
heads  of  departments  and  hence  exercise  the  double 
function  of  leaders  in  national  policy  and  in  administra-;-' 
tion.  In  France  the  cabinet  has  a  double  organization 
corresponding  to  this  double  function.  Cabinets  differ, 
however,  in  respect  to  their  power  in  determining  na- 
tional policy  and  in  respect  to  the  person  or  body  to  which 
they  are  responsible.  The  English  cabinet  is  collect- 
ively responsible.  In  secret  session  the  members  decide 
on  a  common  policy,  sink  their  individual  opinions  and 
stand  or  fall  imitedly.     In  Russia  and  the  United  States 


156  THE   DEVELOPMENT   OF   THE   STATE 

of  America,  cabinet  officers  are  responsible  individually 
and  the  resignation  of  one  does  not  affect  the  resignation 
of  others.  The  English  system  with  differences  in  detail 
is  the  one  prevalent  on  the  continent  of  Europe  and  in 
the  great  English  colonies.  Modifications  of  both  the 
English  and  American  systems  are  found  among  the 
Latin  states  of  America. 

Divisions  of  Administration 

As  states  vary  largely  in  the  amount  and  kind  of  busi- 
ness to  be  administered,  there  is  no  close  uniformity  in 
administrative   organization.     The  council   of 

Separation  " 

of  church  the  primitive  state,  headed  by  its  chief  or 
chiefs,  performed  as  a  unit  all  kinds  of  gov- 
ernmental business.  As  the  state  developed  wealth 
and  power,  a  movement  toward  specialization  and 
differentiation  was  inevitable.  The  most  important 
development  of  this  sort  was  the  slow  separation  from 
executive  authority  of  an  organization  devoted  to  the 
observance  and  maintenance  of  worship  and  religious 
rites.  So  far  has  this  separation  gone,  that  in  a  few 
states  religious  observances  are  no  longer  considered  as  a 
part  of  governmental  business.  In  nearly  all  existing 
states,  however,  the  support  and  encouragement  of 
religion  is  classed  as  a  state  function;  but  the  connection 
between  church  and  state  varies  from  a  close  unity  as  in 
Turkey  or  Russia,  to  an  almost  nominal  connection  as  in 
Italy.  The  United  States  of  America  and  the  United 
States  of  Mexico  best  illustrate  a  real  separation  between 
these  two  great  institutions. 
Tlie  development  next  in  importance  was  the  differ- 


EXECUTIVE   DEPARTMENT  AND   ITS   POWERS     157 

entiation  that  developed  between  the  judicial  business 
of  the  state  and  its  other  administrative  powers.  As 
the  state  assumed  jurisdiction  over  violations  of  the 
Separation  P^acc  of  the  state  and  over  disputes  in  re- 
ofthe  gard  to  the  ownership  of  private  property,  the 

depart-  work  dcvolviug  on  officials  became  so  onerous, 
™^'^**  and  at  the  same   time  was  so  important  in 

that  it  affected  the  lives  and  property  of  the  entire 
community,  that  it  was  gradually  intrusted  to  special 
officials.  These  became  expert  in  the  law  of  the  land 
and  trained  in  the  application  of  the  law  to  the  numerous 
cases  of  every  sort  likely  to  arise  among  contentious 
persons  in  a  complex  civilization.  There  developed, 
therefore,  numerous  courts  exercising  widely  varying 
jurisdiction,  but  at  first  not  coordinated  nor  especially 
efficient.  The  importance  of  their  work  was  so  thor- 
oughly realized  that  progressive  states  early  developed 
efficiency  in  this  branch  of  administration  and  move- 
ments toward  democracy  have  regularly  fought  for 
system  and  justice  in  judicial  administration.  Although 
in  practically  all  states  the  judicial  system  is  organized 
apart  from  the  ordinary  administrative  system,  the 
executive  has  regularly  striven  vigorously  to  control  the 
courts  so  as  to  enhance  his  power.  The  movement, 
however,  in  all  democratic  countries  is  toward  a  separa- 
tion between  the  two;  the  judiciary  is  freed  as  much  as 
possible  from  executive  control,  and  placed  more  and 
more  under  the  control  of  the  lawmaking  body  and  the 
electorate,  under  the  theory  that  thereby  the  rights  of 
the  people  are  more  fully  safeguarded.  This  formal 
separation  has  taken  place  most  fully  in  English-Ameri- 


158  THE   DEVELOPMENT   OF   THE   STATE 

can  states,  but  close  approximations  to  such  systems 
may  be  found  in  other  modern  states. 

The  third  great  development  in  differentiation  was 
the  gradual  separation  of  a  lawmaking  body  from  the 
Separation  couucil  with  its  deliberative  powers.  This 
ma^ki^I'de-  development  will  be  traced  more  fully  in  a 
partment.  Jater  chapter/  but  the  importance  of  the 
change  may  be  indicated  from  two  standpoints: 

(1)  Such  lawmaking  bodies  in  their  present  form  aim 
to  voice  the  will  of  the  people  as  a  whole^  and  hence 
represent  a  democratic  tendency.  (2)  Such  bodies 
have  introduced  slowly  a  process  of  lawmaking  hitherto 
unknown,  and  the  result  of  the  innovation  has  wonder- 
fully increased  the  possibility  of  progress.  All  ancient 
law  was  custom,  and  customs  change  slowly.  Modern 
legislation  assumes  the  right  to  abolish  some  customs,  to 
alter  others  and  to  make  new  ones,  in  every  case  com- 
pelling the  people  to  conform  to  the  new  law.  This 
device  furnishes  at  least  the  possibility  of  progress,  even 
though  in  actual  legislation  many  laws  are  so  vicious, 
absurd  and  conflicting  that  at  times  much  of  legislation 
becomes  a  weariness  to  the  soul. 

The  development  of  an  electorate  is  in  effect  a  differ- 
entiation of  the  same  sort  as  the  foregoing.  The  move- 
ment toward  democracy,  in  seeking  ways  and 

Separation  .  .  . 

of  an  eiec-  mcaus  whcrcby  it  might  check  tendencies 
toward  executive  tyranny,  hit  on  the  happy 
expedient  of  bestowing  on  certain  classes  of  citizens  the 
power  to  make  by  election  appointments  to  important 
offices.  In  this  way  the  electorate  appoints,  more  or  less 
»  Chapter  IX.  *  Chapter  X. 


EXECUTIVE    DEPARTMENT   AND   ITS   POWERS     159 

completely,  according  to  the  strength  of  democracy  in 
various  states,  officials  to  make  laws,  to  have  charge  of 
executive  functions  and  to  serve  on  the  judiciary  as 
judges  or  as  jury  men.  In  more  recent  times  there  has 
developed  a  dread  of  legislative  tyranny,  and  in  con- 
sequence the  electorate  is  demanding  for  itself  direct 
rights  in  lawmaking.  This  is  shown  in  the  growing  use 
of  the  initiative  and  referendum  ^  and  in  popular  con- 
trol over  the  making  of  the  fundamental  law. 

The  ancient  powers  of  the  executive,  therefore,  once 
so  enormous,  have  been  steadily  reduced  in  scope  by 
transfers  of  power  to  the  church,  the  judiciary, 
ministrative  the  lawmaking  body  and  the  electorate.  The 
system.  pesidue  of  powers  is  still  centered  in  the  execu- 
tive department,  but  in  place  of  one  great  council  ad- 
ministering all  such  powers,  there  have  been  formed 
numerous  subordinate  departments,  unified  in  the  cabinet 
and  under  the  authority  of  the  head  of  the  state,  but 
differentiated  in  function.  These  administrative  de- 
partments bear  different  names  in  different  states  and 
are  not  always  separated  on  quite  the  same  lines. 
Broadly  speaking,  however,  there  will  be  departments 
to  regulate  international  relationships,  such  as  war  and 
diplomacy ;  to  administer  colonial  possessions,  if  any,  and 
state  monopolies  such  as  the  postal  service,  railways, 
telegraphs  and  mines,  and  to  regulate  important  divi- 
sions of  economic  life,  such  as  commerce,  agriculture  and 
manufacturing.  There  will  be  departments  also  for  the 
regulation  and  support  of  religion,  education  and  ad- 
ministrative judicial  business,  for  the  management  of 
'See  pages  220-228. 


160  THE   DEVELOPMENT   OF   THE   STATE 

public  finance  and  for  the  supervision  or  control  of  local 
administration. 

Each  department  in  charge  of  any  particular  function 
may  itself  be  specialized  and  include  several  subdivi- 
coardina-  sions,  such  as  the  American  bureaus  and  di- 
tionofad-    yisious.    The  scvcral  departments  of  admin- 

ministra-         .  .  •        i       i 

tive  istration  may   be  so  loosely  supervised  that 

divisions,  gach  is  practically  independent  of  the  others 
and  almost  without  supervision.  On  the  other  hand, 
they  may  be  closely  coordinated  and  strongly  central- 
ized under  the  executive,  as  in  the  English  cabinet 
system.  The  commonwealths  of  the  United  States  of 
America  furnish  the  best  illustrations  of  a  loosely  coor- 
dinated, poorly  supervised  administrative  system  in 
state  and  city  organization.  Many  departments,  com- 
missions and  boards  have  been  organized  with  delegated 
powers,  and  these  conduct  their  affairs  almost  without 
supervision  and  often  with  but  slight  thought  of  co5per- 
ation.  There  is,  however,  a  strong  tendency  to  cen- 
tralize these  departments  and  to  place  them  directly 
under  executive  control. ^ 

The  management  of  administrative  departments  may 

be  in  the  hands  of  a  board  or  commission  or  in  single 

heads.    These  may  hold  office  for  life,  for  a 

The  civil      ^^       ^j,  g]^Qj.^  term  or  for  an  indefinite  term 

service.  => 

during  good  behavior.  They  may  be  appointed 
or  elected,  either  by  the  electorate  directly  or  indirectly 
through  elected  representatives  of  the  people.  They 
may  have  the  power  to  appoint  their  subordinates  at 
will,  or  these  may  be  appointed  in  accord  with  definite 
*  See  "Our  State  Constitutions,"  Chapter  V,  by  the  author. 


EXECUTIVE   DEPARTMENT   AND   ITS   POWERS     161 

rules  and  regulations,  which  may  include  a  system  of 
competitive  t(»sts  and  assignment  of  office  on  the  basis 
of  capacity  and  merit.  These  departments,  with  their 
numerous  officials  and  clerical  forces,  unitedly  make  up 
what  is  called  the  civil  service.  Narrowness  and  in- 
efficiency in  its  management  and  life  tenure  in  office 
develop  a  bureaucracy,  characterized  by  an  overem- 
phasis of  routine  and  details,  to  the  neglect  of  larger 
interests.  Political  favoritism  in  appointments  has  also 
proved  a  fertile  source  of  inefficiency  and  corruption. 
The  problem  of  an  honest,  economic  and  efficient  ad- 
ministration of  government  is  the  hardest  problem  now 
before  political  theorists  and  statesmen. 

There  are,  broadly  speaking,  two  classes  of  office- 
holders : 

(1)  Those  who  have  discretionary  powers  in  the  per- 
formance of  their  executive,  administrative,  legislative 

and  judicial  functions,  such  as  the  heads  of 
h^d^s        ^^^  various  important  divisions  and  subdivi- 
sions   of   government    and   members   of   law- 
making bodies. 

(2)  Those  who  have  ministerial  powers  only,  perform- 
ing their  duties  under  definite  instruction,  such  as  a 
clerical  or  police  force,  and  the  minor  officers  of  the  army 
and  na\'y.  Besides  these  there  are  many  persons  hired 
by  the  government  as  menials  or  laborers,  but  these, 
not  being  engaged  in  governmental  business,  are  not 
properly  classed  as  officials. 

Or,  again,  office-holders  may  be  classified  into  those 
who  serve  in  the  army  and  navy  and  are  subject  to 
special  military  and  naval  rules  and   regulations,  and 


162  THE   DEVELOPMENT   OF   THE   STATE 

those  engaged  in  the  civil  service,  that  is,  all  govern- 
mental positions  other  than  those  in  the  army  and  navy. 
In  continental  Europe  these  are  subject  to  a  special 
system  of  administrative  law. 

Office-holders  may  possess  their  offices  by  hereditary 
right  or  by  appointment  or  election.    An  hereditary 

right  to  an  office  is  based  on  the  theory  that 
om^^  °*     every  person  who  has  large  economic  interests 

at  stake  should  have  in  his  hand  sufficient 
political  power  to  enable  him  to  safeguard  his  interests. 
This  principle  had  its  rise  in  the  patriarchal  period,  when 
land  was  the  chief  form  of  wealth  and  its  chief  defense 
lay  in  the  military  strength  of  its  owner.  Hence  the  rise 
of  a  class  of  landed  nobility  claiming  office  by  hereditary 
right.  As  other  forms  of  wealth  developed,  its  possessors 
sought  political  power  either  through  the  purchase  of 
landed  estates  or  by  allying  themselves  with  political 
leaders  who  could  protect  them  in  their  possessions.  In 
modern  times,  law,  backed  by  the  power  and  authority 
of  the  state,  seeks  to  secure  to  every  man  equal  and  ex- 
act justice.  Under  such  a  system  it  is  unnecessary  that 
the  wealthy  have  special  privileges  in  office-holding,  and 
hereditary  right,  therefore,  tends  to  fall  into  disuse.  But 
if  the  theoiy  of  the  law  is  not  properly  enforced,  wealthy 
classes  invariably  seek,  even  by  corrupt  means  if  neces- 
sary, to  control  governmental  machinery  so  as  to  secure 
their  interests.  If  equal  and  just  law  is  administered,  it 
makes  small  difference  whether  the  office-holder  be  rich 
or  poor,  or  hold  office  for  life  or  for  a  term  of  years.  He 
is  but  a  mouthpiece  of  the  national  will,  which  aims  to 
secure  impartial  justice  to  all  its  citizens  alike. 


EXECUTIVE   DEPARTMENT   AND   ITS   POWERS     163 

Officials  elected  or  appointed  ^  are  alike  in  that  each 
represents,  not  his  own  interests,  but  the  interests  of  the 
body  that  elects  or  appoints  him.  Yet  under 
of'recfii*  ^^^^  usual  theory  of  representation,  an  elected 
representative  is  not  legally  bound  to  obey  in- 
structions given  him  by  his  constituency.  He  may 
choose  to  obey  them  as  a  matter  of  expediency,  influenced 
by  the  hope  of  reelection,  but  should  he  act  otherwise,  he 
cannot  legally  be  called  to  account  for  his  refusal  to  fol- 
low instructions.  Thus,  in  the  United  States,  a  member 
of  an  electoral  college  may  be  instructed  to  vote  for  a 
certain  candidate  for  the  presidency,  and  he  is  under  a 
moral  obligation  to  do  so,  yet  if,  for  some  reason,  satis- 
factory to  himself,  he  should  vote  for  another  candidate, 
his  vote  would  be  legal  and  by  no  possibility  could  be 
altered. 

In  the  earlier  half  of  our  national  history  the  contrary 
theory  was  often  argued,  and  the  legal  right  of  con- 
stituencies to  instruct  their  delegates  was  occasionally 
admitted,  especially  in  the  southern  states.  This  as- 
pect survives  in  the  notion  that  delegates  to  political 
conventions  if  instructed  must  obey  instructions.  In 
recent  years  there  is  a  revival  of  the  "right  of  recall,"  ^ 

'  The  distinction  between  these  two  words  is,  that  an  official  ap- 
pointed, is  appointed  always  by  some  other  official  or  body  of 
officials.  An  official  elected  is  always  chosen  by  the  electorate  or 
by  some  elected  body,  representative  of  the  electorate.  A  mayor 
or  a  president,  for  instance,  appoints,  but  a  city  council  or  a  legis- 
lature elects. 

^  It  is  being  revived,  for  example,  in  connection  with  the  Com- 
mission system  of  municipal  government  and  in  some  of  those  states 
using  the  initiative  and  referendum.  See  Bulletin  No.  12,  Wiscon- 
sin Legislative  Reference  Department. 


164  THE   DEVELOPMENT   OF   THE   STATE 

SO  prominent  in  our  revolutionary  history,  whereby  a 
constituency  by  a  specified  vote  may  cut  short  the  term 
of  office  of  some  officer  or  delegate  whose  actions  are  not 
meeting  with  popular  approval. 

Administrative  Districts 

When,  in  historical  development,  the  simple  village 
community  grows  through  confederation  into  a  larger 

unity,  the  larger  organization  does  not  deprive 
gra^des"^     the  Smaller  ones  of  their  administrative  powers; 

it  merely  assumes  the  general  functions  incident 
to  the  larger  interests  involved.  This,  of  course,  may 
involve  some  supervision  over  the  smaller  organizations. 
If,  at  a  later  stage,  through  conquest  or  peaceable  con- 
federation, a  still  larger  unity  should  develop,  the  same 
statement  would  hold  true.  There  would  thus  be  a 
national  unity  exercising  general  national  powers, 
smaller  unities  exercising  general  local  powers,  and  still 
smaller  unities  exercising  purely  local  powers.  All 
states  that  have  developed  some  importance  will  have 
these  three  classes  of  administrative  bodies :  the  national, 
the  local  and  the  intermediate.  The  names  most  com- 
monly applied  to  the  lowest  division  are  the  town  or 
township  and  the  commune.  Within  this  there  may 
be  smaller  administrative  districts  for  purposes  of  con- 
venience merely.  The  intermediate  organization  is 
historically  known  as  the  province,  in  England  and  the 
United  States  of  America  as  the  county  or  shire,  and  in 
France  at  the  present  time  as  the  department.  This 
division  also  is  frequently  subdivided  into  smaller  dis- 
tricts for  convenience  hi  administration,  in  which  case 


EXECUTIVE   DEPARTMENT   AND   ITS   POWERS     165 

each  subdivision  will  contain  several  townships  or  com- 
munes. ^  If  these  divisions  become  economically  im- 
portant through  commerce,  manufactures  and  popula- 
tion, they  are  incorporated  as  municipalities  or  cities 
and  form  a  grade  by  themselves.  To\^'nships  remain  as 
subdivisions  or  wards  of  the  city.  Subdivisions  of  any 
sort  are  made  for  purposes  of  administration  in  such 
matters  as  conscription,  education,  charity,  sanitation, 
policing  and  elections. 

If  a  state  is  made  up  by  the  unification  of  several  states, 
these  former  states  become  important  administrative 
areas  mtermediate  between  the  province  and  the  na- 
tional area.  The  commonwealths  of  federative  govern- 
ments are  such,  as,  for  instance,  the  commonwealths  of 
the  United  States  of  America,  the  cantons  of  Switzer- 
land and  the  states  of  the  German  empire.  Such,  also, 
were  the  counties  in  Saxon  England,  the  "hundreds" 
then  representing  the  intermediate  grade.  In  any  de- 
veloped state,  therefore,  one  may  expect  to  find  subor- 
dinate to  the  national  area,  townships  or  communes, 
provinces  or  counties,  and  cities.  If  the  state  is  federa- 
tive, the  commonwealths  form  an  additional  grade. 
Subdivisions  of  these  several  grades  will  be  found  in 
larger  or  smaller  number  according  to  convenience  in 
administration. 

Naturally  and  historically  these  various  subdivisions 
should  exercise  full  local  powers,  subject  only  in  general 
matters  to  the  larger  area.  This  is  the  modern  theory  of 
home  rule  now  under  discussion  in  American  cities  and 

*  See,  for  instance,  the  French  Arrondissement  and  Canton,  or 
the  Prussian  Kreis. 


166  THE   DEVELOPMENT   OF  THE   STATE 

in  Ireland,  Finland  and  Poland.  As,  however,  states 
have  developed  policies  of  centralization,  they  have  in- 
Home  terpreted  their  general  powers  more  broadly, 
"■"^t^'         and  have  pressed  their  authority   more  and 

centraliza-  ^  ... 

tion.  more  vigorously  on  subordinate  administrative 

areas.  This  has  usually  been  under  plea  of  military 
necessity  or  of  needed  uniformity  or  of  general  welfare. 
As  the  strength  of  this  tendency  varies  with  conditions, 
the  degree  of  cenirgjization  varieg^  iT^  p«^l^  articular 
state  according  to  the^dojuinant  theories  of  militarism, 
uniformity  and  general  welfare.     On  the  whole,  three 


grades  of  centralization  may  be  noted: 

(1)  That  in  which  the  subordinate  areas  or  bodies 
politic  are  clearly  regulated  and  supervised  directly  h^ 
the  national  administration  through  its"own  officials,  as 
in  France. 

(2)  That  in  which  the  subordinate  areas  are  regulated 
and  supervised  indirectly  by  the  national  administra- 
tion, as  in  England,  where  in  many  matters  a  uniform 
system  is  adopted,  but  the  administration  of  it  is  left  to 
the  local  administrative  bodies. 

(3)  That  in  which  the  subordinate  areas  practically 
regulate  all  their  local  affairs  without  much  interference 
from  the  national  administration,  as  in  the  relation  of 
Great  Britain  to  its  autonomous  colonies,  and  in  the 
United  States  of  America. 

No  state  conforms  entirely  to  any  one  of  these  types; 
the  most  centralized  government  may  allow  large  local 
powers  in  some  matters  and  the  most  decentralized 
may  employ  large  general  powers  in  such  affairs  as  war, 
diplomacy  and  taxation.    The  test  is  made  by  the  theo- 


EXECUTIVE   DEPARTMENT  AND   ITS   POWERS     167 

retical  principle  on  which  government  acts,  irrespective 
of  whether  at  any  particular  time  it  seems  expedient 
to  use  many  or  few  powers  of  regulation.  Just  how 
much  home  rule  should  be  left  vested  in  the  sub- 
ordinate divisions  is  a  question  of  policy,  largely  to  be 
determined  by  conditions.  There  must  be  taken  into 
account  on  one  side  the  general  intelligence  and  public 
spirit  of  the  communities  themselves,  and  on  the  other 
the  necessity  for  emphasis  on  broad  general  interests 
as  against  localism  and  incompetency.  No  theory  is, 
in  itself,  always  and  everywhere  true.  Wisdom  in  rightly 
interpreting  the  conditions  of  the  times  must  guide  in 
settling  on  a  policy  of  home  rule  or  centralization. 

SPECIAL  REFERENCES 

Executive  Development :  Anson.  For  England :  Lowell.  For  the 
United  States  of  America:  Ford;  Finley  and  Sanderson, 
"American  Executive,"  1900. 

Cabinets:  For  continental:  Lowell.  For  English:  Blauvelt  and 
Torrens;  "Select  List  of  Books  on  the  Cabinets  of  England 
and  America,"  published  by  Library  of  Congress,  1903. 

Administration:  Goodnow,  Fairlie,  Lowell,  W.  Wilson, 


CHAPTER  VIII 

THE    JUDICIAL    DEPARTMENT 

The  chief  function  of  the  judicial  department  is  to 

interpret  the  law  and  to  apply  its  penalties  and  remedies 

in  all  cases  brought  before  the  courts  for  their 

The 

judicial  decision.  This  power  is  fundamental  to  the 
successful  workings  of  government,  which  by 
nature  is  coercive  and  must  have  authority  to  enforce 
by  penalty  its  decisions.  Such  a  power  is  essentially 
executive  and  was  originally  wielded  by  the  elders  or  in 
earlier  states,  by  the  king.  In  modern  states  judicial 
authority  has  differentiated  into  two  great  branches, 
one  exercised  chiefly  by  the  executive  department  and 
the  other  by  a  separate  department  devoted  to  judicial 
functions  only.  This  latter  department  is  concerned 
chiefly  with  alleged  infractions  of  the  law  by  private 
persons  and  with  disputes  between  private  persons  in 
regard  to  property  rights.  That  part  of  the  judicial 
function  residing  in  the  executive  department  is  con- 
cerned mainly  with  the  enforcement  of  discipline  in  the 
army  and  navy,  in  the  civil  service  and  in  the  settle- 
ment of  disputes  arising  under  administrative  rules. 

As  law  in  the  primitive  state  was  simply  immemorial 
custom,  binding  on  all  persons  alike,  infractions  of  it 
were  few  and  far  between.  The  chief  business  of  the 
state  in  those  times  was  war,  and  the  judicial  funct^ion 

168 


THE   JUDICIAL   DEPARTMENT  160 

of  the  state  probably  had  its  origin  in  proceedings  against 

those  who  failed  in  the  customary  duties  and  obligations 

of  war.     The  procedure  in  such  cases  was  short 

Executive-  * 

judicial  and  the  punishment  severe.  This  original  ju- 
dicial power  of  the  state  survives  in  treason 
laws  and  in  the  power  exercised  by  the  executive 
department  through  its  control  over  discipline  in  the 
army  and  navy.  This  power  is  not  exercised  arbi- 
trarily in  modern  states,  but  in  accordance  with  con- 
stitutional or  statutory  provisions.  Under  this  power 
courts  martial  may  be  authorized  to  enforce  discipline 
by  bringing  offenders  "  to  a  more  exemplary  and  speedy 
punishment  than  the  usual  forms  of  law  will  allow."  ^ 

Another  illustration  of  this  judicial  power  may  be 
observed  in  times  of  riot,  insurrection  or  public  danger, 
when  the  authority  of  courts  martial  may  supersede 
the  authority  of  the  ordinary  courts  of  the  land  in 
respect  to  cases  involving  the  peace  and  safety  of  the 
state.  The  exercise  of  this  power  is  carefully  safe- 
guarded in  modern  states  by  legal  provisions  in  regard 
to  the  time  and  manner  of  its  exercise,  and  by  holding 
responsible  for  the  proper  performance  of  their  duties 
those  who  wield  this  extraordinary  power. 

A  third  form  of  this  kind  of  judicial  function  is  seen 
in  the  arbitrary  power  exercised  by  courts  in  maintaining 
their  dignity  by  punishing  violations  of  judicial  orders. 
This  power  to  punish  arbitrarily  by  fine  or  imprison- 
ment for  "  contempt  of  court"  is  a  real  power  even  at  the 
present  day  as  seen  recently  in  the  United  States  of 
America  in  the  injunction  cases  affecting  Debs  (1895)  and 

«  First  mutiny  act,  England,  1689. 


170  THE   DEVELOPMENT   OF   THE   STATE 

Mitchell  and  Gompers  (1908).^  Historically,  of  course, 
the  court  is  merely  a  department  of  administration 
under  the  king  and  punishes  for  contempt  of  his  com- 
mands. Lawmaking  bodies  in  a  similar  way  exercise 
such  judicial  powers  in  matters  affecting  their  dignity, 
privileges  or  membership.  In  general  it  will  be  observed 
that  monarchies  contain  many  interesting  survivals  of 
broad  judicial  powers  that  still  reside  in  king  and  council. 
Illustrations  could  be  multiplied,  but  the  judicial  power 
exercised  by  privy  council  under  the  English  Tudors 
and  by  the  present  house  of  lords,  the  descendant  of 
the  Saxon  witan  or  the  Norman  great  council,  will 
readily  suggest  the  application. 

An  extension  of  this  idea  of  executive  judicial  power, 
developed  and  maintained  by  the  executive  so  as  to 
strengthen  its  importance  as  against  a  judicial 
trative  system  proper,  may  be  found  in  those  states 
courts.  ^^^^  instance,  in  practically  all  of  the  European 
continental  states)  that  have  a  separate  system  of 
courts,  known  as  administrative  courts,  for  trying  cases 
in  which  officers  of  the  civil  administration  are  charged 
with  criminal  or  illegal  acts  committed  in  connection 
with  the  discharge  of  their  official  functions.  The  idea 
underlying  such  a  system  of  courts  is  that  civil  officers 
in  the  discretionary  performance  of  their  public  duties 
may  not  infrequently  have  occasion  to  violate  the  or- 
dinary law  of  the  land.  In  such  case  they  should  not  be 
tried  in  the  ordinary  courts,  but  by  their  superior  offi- 
cers, who  from  their  understanding  of  the  situation  can 

*  See  Stimson,  Chapter  IX,  for  discussion  of  the  injunction  in 
labor  disputes. 


THE   JUDICIAL   DEPARTMENT  171 

best  decide  as  to  the  necessities  of  the  case.  This  theory 
of  official  responsibihty  does  not  find  favor  in  English- 
speaking  communities,  which  prefer  to  make  official  and 
private  citizens  alike  responsible  to  the  same  law.  The 
practical  effect  of  an  administrative  system  of  courts  is 
(1)  to  develop  a  simpler  procedure  and  law  for  officials 
in  respect  to  their  administrative  acts,  (2)  to  mingle 
principles  of  abstract  justice  with  notions  of  expediency 
and  (3)  to  develop  a  bureaucracy  of  special  privileges  in 
part  above  and  outside  of  the  ordinary  law  of  the  land. 

As  the  French  system  of  administrative  courts  is  the 
model  after  which  other  continental  states  have  pat- 
terned, a  brief  statement  of  its  history  and  importance 
may  be  found  useful. ^ 

In  the  centuries  immediately  preceding  the  revolution 
of  1789,  the  ordinary  judicial  bodies,  the  provincial 
French  parlcmcnts,  were  not  unified  into  a  great  na- 
trativT"  tional  system  as  were  the  courts  in  England, 
courts.  while  on  the  other  hand  the  national  adminis- 
tration was  rapidly  centralizing  its  powers  and  adding 
to  them.  Naturally,  therefore,  the  administration 
vigorously  resisted  attempts  on  the  part  of  the  courts  to 
exercise  jurisdiction  over  the  acts  of  its  officials,  and 
began  the  process  of  organizing  special  courts  of  its  own. 
In  the  famous  Declaration  of  Rights  of  1789,  the  theory 
of  Montesquieu  in  respect  to  the  separation  of  powers 
was  expressly  included  and  emphasized;  but  in  the  fol- 

*  For  fuller  explanations  of  the  French  system  and  numerous 
references,  see  Goodnow,  "Comp.  Adm.  Law,"  vol.  ii,  chapter  vi; 
and  Lowell,  "Cont.  Parties,"  vol.  i,  pp.  47-68.  These  works  also 
explain  the  administrative  systems  of  other  countries. 


172  THE   DEVELOPMENT   OF   THE   STATE 

lowing  year  the  assembly  by  law  logically  interpreted 
this  to  mean,  in  the  light  of  French  history,  that  the 
courts  should  never  be  allowed  to  interfere  with  acts  of 
administrative  officials  done  in  the  performance  of  their 
duties.  Still,  in  order  to  safeguard  citizens  in  their 
rights,  provisions  were  carefully  made  for  appeals  from 
subordinate  to  higher  administrative  authorities.  Since 
that  time  the  place  and  importance  of  court,  law  and 
procedure  have  been  carefully  worked  out  into  the  present 
admirable  system  of  an  administrative  judiciary. 

As  at  present  organized,  the  center  of  the  entire  sys- 
tem, the  court  of  last  resort,  is  the  judicial  section  of 
the  council  of  state,  which  body  is  composed  of  the 
ministerial  heads  of  the  great  departments  of  adminis- 
tration and  of  numerous  permanent  administrative  offi- 
cials of  high  grade.  Below  the  judicial  section  of  this 
council  are  the  prefectural  councils,  each  made  up  of  the 
prefect  of  the  department  as  nominal  president,  and  of 
councilors  appointed  and  removed  by  the  president  of 
the  republic.  Prefects,  and  in  the  communes  the  mayors, 
serve  as  judges  in  certain  petty  cases.  Within  the  de- 
partment there  are  other  specialized  courts,  such  as  the 
superior  council  of  public  instruction,  coordinate  with 
the  prefectural  council  but  lacking  its  importance.  These 
also  are  of  course  subordinated  to  the  council  of  state. 

In  France  a  sharp  distinction  is  made  between  public 
and  private  law.  As  administrative  officials  in  the  per- 
formance of  their  official  duties  administer  public  law 
and  apply  it  to  cases  arising  in  national  administration, 
they  under  French  theory  should  be  free  from  the 
jurisdiction  of  the  ordinary  courts,  which   adjudicate 


THE   JUDICIAL   DEPARTMENT  173 

only  on  the  rights  and  duties  of  private  individuals.^ 
They  are,  therefore,  in  fact  placed  under  the  authority 
French  ^^  ^^^  administrative  courts,  which  use  a  pro- 
adminis-  ccdurc  and  law  different  from  those  of  the  ordi- 
nary system.  These  courts  in  rendering  their 
decisions  rely  chiefly  on  precedent,  based  on  the  inter- 
pretation of  statutory  authority  or  ordinances  issued  by 
the  administration.  As  public  policy  must  be  taken  into 
account  as  well  as  principles  of  abstract  justice,  the 
courts  naturally  use  a  loose  interpretation,  a  flexible 
procedure  and  notions  of  expediency.  This  is  all  the 
more  possible  since  they  are  not  really  bound  to  follow 
the  law  too  closely,  for  the  reason  that  the  final  decision 
on  appeal  lies  in  the  council  of  state,  itself  an  admmis- 
trative  body,  and  not  subject  to  the  general  courts  using 
the  private  law  of  the  land.  Still,  as  there  is  a  large 
freedom  in  appeals,  an  ordinary  citizen  will,  as  a  rule, 
obtain  a  just  decision  at  small  expense  and  with  slight 
delay  in  the  administrative  courts.  He  may,  however, 
not  secure  exact  justice,  or  even  justice  at  all,  if  the  case 
assumes  a  political  aspect  and  governmental  policy 
seems  to  demand  a  partisan  decision. 

This  system  of  law  is,  of  course,  at  variance  with  the 
English-American  theory,  which  subjects  every  govern- 
mental official  and  his  acts  to  the  final  juris- 
p^auek!^  diction  of  the  general  courts  of  the  land.  Yet 
there  are  approximations  to  the  French  system 
in,  for  example,  the  series  of  military  and  naval  courts 
administering  in  separate  courts  a  special  law  and  pro- 

^  By  exception  to  the  principle,  criminal  law,  which  is  properly 
public  law,  is  for  the  most  part  adjudicated  by  the  ordinary  courts. 


174  THE   DEVELOPMENT   OF  THE   STATE 

cedure.  In  some  of  the  departments  of  administration 
also,  such  as,  e.  g.,  the  department  of  the  treasury  in  the 
United  States,  there  arc  semi-judicial  bodies  to  render 
decisions  on  disputed  interpretations  of  law  and  ordi- 
nance. The  rise  of  administrative  commissions,  national 
and  local,  such  as  commissions  in  regulation  of  interstate 
commerce  or  of  quasi-public  corporations  holding  fran- 
chises, authorized  to  render  judicial  decisions  on  matters 
intrusted  to  them,  is  another  illustration  of  the  same 
development.  Yet  though  these  are  differentiated,  they 
are  not  separated  and  given  coordinate  jurisdiction. 
They  are  subject  to  the  law  of  the  land,  and  their  deci- 
sions may  ultimately  be  brought  for  final  review  before 
the  general  courts  of  law.* 

An  illustration  of  judicial  power  exercised  by  a  law- 
making body  is  seen  in  the  development  of  the  im- 
judiciai  peachment  power.  When  the  English  parlia- 
powerin      mcnt  iu  its  earlier  years  was  seeking  to  make 

the  law-  ,,.,..  .,  , 

making  the  kmg  s  mmisters  responsible  to  it,  an  enect- 
tody.  j^g  weapon  was  found  in  the  bill  of  attainder. 

This  bill  simply  named  the  offender,  declared  him  guilty 
of  high  crimes  and  ordered  his  execution.  It  was  an 
arbitrary  method  of  removing  an  obnoxious  minister 
without  form  of  trial  and  was  certainly  effectual.  At  a 
later  stage,  as  a  concession  to  popular  prejudice  in  favor 
of  a  trial,  an  obnoxious  minister  would  be  formally 
charged  by  one  house  with  crime,  tried  by  the  other 
and  declared  guilty  as  a  matter  of  course.     This  method 

*  See  T.  R.  Powell,  "Conclusiveness  of  Administrative  Determi- 
nations in  the  Federal  Government,"  Am.  Pol.Sc.  Review,  August, 
1907,  pp.  583-G07. 


THE  JUDICIAL   DEPARTMENT  175 

also  was  effective.  By  the  time  public  sentiment  had 
risen  to  a  height  where  it  demanded  a  fair  trial  on 
impeachment/  ministers  had  been  made  responsible 
through  elections  and  the  reform  of  the  parliamentary 
system.  Under  such  conditions  impeachment  has  be- 
come practically  unnecessary.  In  the  United  States  of 
America  bills  of  attainder  are  forbidden  by  constitution 
and  though  impeachment  is  authorized,  yet  such  a 
method  of  trial  is  so  tedious,  cumbersome  and  barren  of 
results  that  it  has  virtually  become  obsolete.  Public 
opinion,  the  courts,  elections  and  compulsory  resigna- 
tion from  office  furnish  the  usual  methods  whereby 
public  officials  are  made  responsible  in  the  performance 
of  their  duties. 

Development  of  the  Judicial  Department 

These  historic  judicial  powers  residing  in  the  execu- 
tive, and  in  the  legislative  as  a  development  from  the 
speciaiiza-  cxecutivc,  represent  the  original  judicial  powers 
judidai  residing  in  the  primitive  government.  In  those 
business.  timcs  all  other  infractions  of  custom  and  dis- 
putes of  all  kinds  were  settled  by  private  vengeance  or 
compromise.  As  this  system  of  vengeance  passed  under 
the  jurisdiction  of  the  state,  the  executive  exercised  this 
new  judicial  power  also.  But  as  the  burden  of  adminis- 
tration grew  with  increasing  jurisdiction,  it  became  neces- 
sary to  separate  this  judicial  business  from  the  ordinary 

*  See  article,  "  The  Law  of  Impeachment,"  D.  Y.  Thomas,  Am. 
Pol.  Sc.  Review,  May,  1908.  The  process  of  seeking  to  make  a 
ministry  responsible  to  a  parliament,  or  to  its  lower  house,  may  be 
illustrated  by  such  movements  in  Japan  and  Germany  and  in  the 
earlier  years  of  the  Russian  duma. 


176  THE   DEVELOPMENT   OF   THE   STATE 

business  of  the  executive  and  to  delegate  it  to  a  separate 
set  of  officials,  who  devoted  themselves  to  the  knowledge 
of  the  law  of  the  land  and  the  principles  of  judicial  ad- 
ministration. This  separation,  however,  was  for  a  long 
time  largel}^  nominal.  Though  the  distinction  in  regard 
to  the  kind  of  function  was  early  established,  the  de- 
velopment of  a  distinct  set  of  officials  devoting  them- 
selves to  judicial  business  came  much  later.  The  same 
officials  administered  executive  business  as  assistants 
of  the  king,  sat  in  the  council  and  advised  him  in  matters 
of  national  policy,  and  in  case  of  dispute  declared  what 
was  in  their  opinion  the  law  of  the  land.  They  would 
then  as  judges  sit  on  the  king's  judgment  seat,  decide 
disputes  and  punish  violations  of  the  law.  Such  a  sys- 
tem, however,  best  suits  small  states  of  comparatively 
simple  administration.  As  civilization  becomes  complex 
and  as  states  increase  in  population  and  wealth,  thereby 
niultiplying  personal  and  property  rights,  a  further  dif- 
ferentiation becomes  inevitable.  Judicial  functions  pass 
into  the  control  of  a  specialized  class,  who  by  practice 
and  training  become  expert  in  the  law. 

The  next  development  results  from  the  rise  of  democ- 
racy. Judicial  power  practically  affects  the  entire  pop- 
ulation. Any  person  may  at  some  time  or 
ence  of  the  othcr  bc  cliargcd  with  a  violation  of  law  or  be 
judiciary,  conccmed  in  the  settlement  of  property  rights. 
All,  consequently,  become  interested  in  having  the  courts 
decide  justly  and  honestly  cases  brought  before  them. 
Venal  judges  and  corrupt  decisions  have  always  been 
denounced,  and  even-handed  justice  for  all  men  sought 
as  the  ideal.     For  such  reasons  a  developing  democracy 


THE  JUDICIAL   DEPARTMENT  177 

intuitively  seeks  to  control  the  courts  so  as  to  insure 
greater  justice.  As  it  gains  power  and  intelligence  it  is 
able  to  control  more  fully  the  organization  of  the  judicial 
system,  the  appointments  to  ofhce  and  the  quality  of 
the  law,  and  to  remove  one  after  the  other  the  special 
privileges  of  favored  classes  so  as  to  make  all  men  equal 
in  the  eyes  of  the  law  (pares  infer  pares).  Naturally 
enough,  kings  stoutly  resisted  this  developing  independ- 
ence of  the  judiciary,  but  in  democratic  communities 
they  resisted  in  vain.  In  such  states  we  find  a  judiciary 
and  judicial  department  to  all  intents  and  purposes  free 
from  the  domination  of  the  executive,  administering  a 
law  approved  by  representatives  of  the  people,  and 
rendering  decisions  with  impartial  purpose  and  theoret- 
ically without  distinction  of  persons.  In  monarchies  the 
king  may  still  by  theory  be  looked  on  as  the  head  of  the 
judicial  system,  but  his  power  is  nominal  and  is  exercised 
chiefly  by  tempering  judicial  punishments  with  mercy 
through  the  exercise  of  the  pardoning  power,  which  is 
still  held  as  an  executive  prerogative. 

The  modern  theory  of  law  is  strongly  democratic  in 

that  the  state  aims  to  treat  every  man  alike  before  the 

law.     Ancient  systems  were  founded  on  far 

Privileged     (different  principles.     Even  in  primitive  times, 

classes.  f  i  i  J 

when  a  rude  democracy  characterized  the  horde, 
the  elders  had  special  privileges,  and  women  and  children 
were  too  often  considered  as  having  no  rights  that  a  man 
was  bound  to  respect.  The  caste  system  of  India  illus- 
trates the  extreme  development  of  special  privileges  ac- 
cording to  social  grade.  The  people  are  carefully  di- 
vided into  castes,  and  legal  rights  are  based  in  accordance 


178  THE   DEVELOPMENT   OF   THE   STATE 

with  the  quahty  of  the  caste.  Similar  distinctions  ex- 
isted and  do  yet  exist  in  autocratic  or  aristocratic 
monarchies.  Special  privileges  were  held  by  the  no- 
bility as  the  military-governing  class,  and  by  the  clergy. 
Below  these  were  freemen,  freedmen  and  aliens,  with 
rights  as  against  one  another  but  with  small  rights 
as  against  the  nobility.  At  the  bottom  of  the  scale  were 
slaves,  having  almost  no  status  nor  rights  in  the  eyes  of 
the  law.  Equality  before  the  law  under  such  a  system 
was  impossible.  Crimes  might  be  committed  with  im- 
punity by  members  of  the  higher  classes  that  would 
bring  condemnation  and  severe  punishment  if  com- 
mitted by  members  of  the  lower  classes.  The  testimony 
of  the  one  far  outweighed  the  testimony  of  the  other. 
This  brought  about  conflicting  ethical  standards  and 
degradation  of  morals.  As  the  influence  of  the  common 
people  developed,  they  fought  vigorously  for  equality  of 
rights  for  all  freemen,  and  as  slavery  disappeared  that 
meant  for  all  men.  Slowly  the  plebeians  or  commoners 
won  rights  and  deprived  the  higher  classes  of  special 
privileges,  until  with  the  full  tide  of  democracy  in  the 
nineteenth  century  the  virtual  legal  equality  of  man  was 
accepted  by  many  progressive  states.  There  are  still 
class  distinctions  based  on  social  rank,  wealth  and  birth, 
but  these  are  rapidly  disappearmg  in  judicial  matters. 
As  a  matter  of  practice,  even  in  democracies,  courts 
make  real  distinctions  almost  unconsciously  between 
the  wealthy  and  the  poor,  between  social  leaders  and 
social  inferiors,  between  persons  of  respectability  and 
responsibility  and  their  opposites.  All  this  is  natural 
enough  under  the  circumstances  of  modern  life;  but  the 


THE  JUDICIAL   DEPARTMENT  179 

democratic  movement  is  slowly  removing  in  modern 
states  all  legal  distinctions  between  man  and  man,  save 
those  based  on  character  and  social  utility. 

The  judicial  system  of  any  modern  state  is  complex 
and  confusing  to   the  layman,   yet  there  are  certain 

natural  lines  of  development  easy  to  follow 
clurt?^  °^    ^^^^^  readily  suggest  the  '  clew  for  any  given 

system.  In  criminal  matters  there  will  regu- 
larly be  three  grades  of  courts.  In  the  first,  or  lowest, 
grade  there  will  be  found  established  in  every  small  dis- 
trict of  sufficient  population  a  court  whose  jurisdiction 
is  limited  to  the  summary  disposal  of  petty  crimes  or 
misdemeanors  or  to  the  commitment  of  the  accused 
person  to  the  court  of  next  higher  grade.  This  court 
will  have  jurisdiction  over  cases  mvolvmg  serious  crimes 
and  severe  punishment.  The  third  and  highest  court 
will  be  authorized  to  try  special  forms  of  important 
crime  and  to  hear  appeals  from  the  lower  courts.  When 
a  final  decision  is  rendered,  the  only  recourse  left  to 
the  convicted  criminal  is  a  petition  to  the  pardoning 
power,  which  may,  from  the  standpoint  of  mercy,  modify 
to  some  extent  the  amount  of  penalty  inflicted  by  the 
courts.  Kings  formerly  claimed  the  right  to  suspend  or 
waive  the  appfication  of  the  law  in  the  case  of  particular 
persons  charged  with  crime,  but  such  powers  are  not 
consistent  with  a  theory  of  equal  justice.  In  civil  cases 
a  threefold  classification  is  also  common.  There  is  a 
local  court  for  petty  cases,  a  court  for  disputes  involvmg 
more  important  property  rights  and  a  supreme  court  for 
specified  classes  of  important  cases  and  for  appeals. 
Inequitable  decisions  finally  rendered  by  the  civil 


180  THE   DEVELOPMENT   OF   THE   STATE 

courts  formerly  might  be  appealed  to  the  king  as  the 
fountain  of  justice,  who  would  personally  remedy  the 
defects  of  the  law  by  a  special  decision,  or  might 
system  of  delegate  the  power  of  investigation  to  a  special 
equity.  official  or  body  of  officials,  who  thereby  became 
a  court.  In  this  way  was  developed  in  England  the 
court  of  the  Lord  Chancellor  and  the  system  of  equity 
law.  In  modern  times  an  appeal  for  remedy  in  the  form 
of  a  petition  may  be  sent  to  the  lawmaking  body  which, 
as  the  maker  of  law,  may  modify  judicial  decisions 
in  individual  cases,  unless  restrained  by  constitutional 
prohibitions. 

The  best  illustration  of  the  process  of  introducing 
equity  into  custom  can  be  obtained  from  a  study  of  the 
development  of  Roman  law.  The  harsh  and  crude  cus- 
toms of  the  early  law  as  codified  in  the  XII  Tables  were 
slowly  modified  by  eqviitable  principles  introduced  by 
prsetor,  commentator  and  emperor,  until  after  a  thousand 
years  of  constant  modification  (450  b.c. — Justinian's 
Codification,  529-534  a.d.)  the  civil  law  of  Rome  stood 
forth  as,  possibly,  the  most  valuable  contribution  of 
Roman  civilization  to  its  modern  successors  in  eastern 
Asia  and  Europe. 

The  comparatively  simple  judicial  organization  out- 
lined above  may  become  more  complex  by  the  multi- 
plication of  administrative  functions.     Great 

Specialized 

jurisdic-  masses  of  specialized  business  may  be  set  apart 
and  handled  by  special  systems  of  courts  pat- 
terned in  general  after  the  national  system.  If,  for 
example,  church  and  state  be  united,  there  may  be  a 
special  series  of  ecclesiastical  courts  to  consider  cases 


THE   JUDICIAL   DEPARTMENT  181 

involving  ecclesiastical  law  and  the  clergy.  Foreign 
commerce  involves  a  system  of  admiralty  courts  and 
consular  courts  to  exercise  jurisdiction  over  cases  arising 
on  the  seas  or  in  foreign  countries.  There  may  be  a 
special  series  of  courts  for  the  regulation  of  family  rights 
as  in  courts  of  probate  and  of  divorce,  or  courts  for  the 
separate  trial  of  juveniles.  Generally  speaking,  the  de- 
velopment of  a  specialized  line  of  judicial  jurisdiction 
tends  to  result  in  the  formation  of  a  special  court  or 
series  of  courts  for  the  settlement  of  such  cases,  or  if  not, 
then  the  grade  of  court  that  naturally  would  have  juris- 
diction over  such  business  may  sit  in  several  divisions, 
each  presidmg  over  a  particular  kind  of  case. 

Again,  complexity  in  organization  may  be  increased 
by  the  multiplication  of  administrative  areas  beyond 
the  ordmary  areas  of  township,  county  and  state.  In 
this  case  the  juristliction  of  the  first  and  second  grades  of 
courts  will  probably  be  subdivided  for  the  sake  of  con- 
venience so  as  to  suit  the  needs  of  the  additional  areas. 
Or  the  development  of  a  federation  with  its  dual  form  of 
government  will  duplicate  the  judicial  system  of  the 
state  as  a  whole.  Or,  in  addition  to  the  ordinary  na- 
tional systems  of  courts,  there  may  be  a  territorial  sys- 
tem, a  colonial  system  or  the  system  of  a  former  state 
now  subordinate.  In  such  instances  each  system  should 
be  studied  by  itself  and  then  the  connecting  links  that 
bind  together  the  several  systems  into  one  common 
judicial  S3^stem. 

In  addition  to  the  several  series  of  courts  for  the  trial 
and  settlement  of  cases,  there  is  a  complicated  mechanism 
to  supplement   the  work  of   the  courts.     In  order  to 


182  THE   DEVELOPMENT   OF   THE   STATE 

bring  cases  properly  before  the  courts  there  is  a  large 
bod)^  of  persons  acting  as  police  officers  or  constables  to 
The  aid  in  carrying  out  its  functions.     As  the  state 

iystem  as  ^^^^  prosccutcs  iu  Criminal  cases,  there  is  a 
a  whole.  corps  of  prosccuting  lawyers  in  the  employment 
of  the  state,  aided  in  their  initial  work  in  English  coim- 
tries  by  the  grand  jury.  Cases  may  be  settled  directly  by 
a  judge  or  a  bench  of  judges,  or  a  petit  jury  may  be  used 
to  aid  in  the  decision.  Punishment  in  ancient  states 
was  administered  on  the  spot,  but  in  modem  times  long 
delays  and  imprisonment  regularly  follow  the  verdict. 
This  involves  a  complex  system  of  prison  administration 
and  places  of  detention.  The  entire  procedure  of  judi- 
cial administration,  from  the  formal  charge  and  arrest 
to  final  conviction  and  punishment,  is  carefully  worked 
out  in  modern  judicial  systems,  and  every  effort  made 
to  give  the  accused  a  fair  and  speedy  trial,  with  every 
possible  opportunity  to  make  his  defense  and  if  possible 
to  prove  his  innocence.  So  detailed  have  these  pre- 
cautions become  that  justice  is  often  thwarted  by  over- 
emphasis on  safeguards,  resulting  too  frequently  in  con- 
tempt of  law  and  mob  violence.  In  democracies,  a 
speedy  procedure,  impartially  and  rigidly  administered, 
and  the  surety  of  punishment  in  case  of  guilt  are  the 
safest  means  of  securing  justice  and  respect  for  law. 

Legal  Penalties 

In  criminal  matters,  the  essence  of  a  judicial  decision 
is  the  infliction  of  a  proper  penalty  for  violation  of  law. 
As  the  early  jurisdiction  of  the  state  lay  chiefly  over 
military  offenses,  other  offenses  were  visited  with  pen- 


THE   JUDICIAL   DEPARTMENT  183 

alty  by  the  social  agencies  of  the  time.  Many  of  these 
still  survive,  but  with  considerably  modified  powers. 
Forms  of  ^  church,  a  school  or  a  social  organization 
punish-  may  discipline  or  punish  its  members,  par- 
ents may  within  reason  punish  their  minor 
children,  public  opinion  may  ostracize  or  otherwise 
punish  offenders  of  social  decorum,  and  individuals  ov- 
casionally  undertake  to  inflict  punishment  in  return  for 
private  wrongs.  By  present  theory  the  entire  power  of 
punishment  inheres  in  the  state  as  the  keeper  of  the 
peace,  though  in  deference  to  long-standing  custom  it 
may  permit  or  delegate  -the  power  of  punishment  to  such 
agencies  as  those  above  mentioned. 

The  infliction  of  penalty  has  passed  through  several 
well-defined  stages,  one  or  several  of  which  can  be  traced 
The  four  in  the  history  of  each  of  the  existing  civiliza- 
punfsh-^  tions.  Many  curious  survivals  of  ancient 
™ent.  stages  of  punishment  may  still  be  found  even 

in  the  most  highly  developed  civilization. 

(1)  The  first  period  is  that  of  revenge.  Penalty  in  all 
its  forms  was  savage  and  cruel.  Man's  nervous  system 
was  in  primitive  times  less  highly  organized  and  endured 
pain  more  easily;  human  sympathy  was  lacking  and 
belief  in  the  sacredness  of  human  life  hardly  existed. 
Punishment  was  ruthless,  often  out  of  all  proportion  to 
the  crime,  and  frequently  involved  the  innocent  with  the 
guilty,  under  the  ancient  thcoiy  of  collective  responsi- 
bility either  of  family,  clan  or  fraternity. 

(2)  As  notions  of  justice  developed  in  men's  minds,  the 
desire  for  revenge  became  modified  into  the  principle  of 
retaliation.     Every  offense  was  to  be  atoned  for  by  a 


184  THE   DEVELOPMENT   OF   THE   STATE 

similar  punishment.  It  was  the  period  of  lex  talionis,  an 
eye  for  an  eye,  a  tooth  for  a  tooth,  no  more,  no  less.^ 
This  system  also  was  cruel,  but  yet  in  its  attempt  to 
secure  justice  it  was  an  improvement  over  the  vindictive 
system  of  the  earlier  stage. 

(3)  With  the  rise  of  personal  property  there  came  a 
strong  tendency  to  atone  by  the  payment  of  a  fine  for  all 
but  the  worst  crimes,  blood  penalty  being  exacted  only 
from  the  worst  criminals  or  from  those  who  were  unable 
to  pay  fines.  Under  this  system  there  was  a  carefully 
graded  list  of  offenses,  each  valued  at  a  particular  fine, 
varying  in  amount  with  the  social  rank  of  the  injured 
person.  The  fine  in  early  times  was  paid  partly  to  the 
injured  and  partly  to  the  state.  Confiscation  of  property 
is  simply  a  variation  of  this  form  of  punishment.  With 
the  development  of  slavery,  punishment  for  crime  might 
in  default  of  fine  result  in  the  sale  of  the  criminal,  and 
perhaps  of  his  family  also,  into  slavery  for  a  term  of 
years  or  for  life.  As  slavery  disappeared,  this  form  of 
punishment  survived  in  sentences  that  condemned  men 
to  labor  in  mines  or  on  governmental  works,  to  serve  in 
the  army  or  navy,  or  as  servants  to  private  citizens  who 
employed  this  convict  labor  on  plantations  or  in  various 
industries. 

(4)  Another  stage  of  punishment  developed  when  the 
courts  undertook  to  deter  men  from  crime  by  the  inflic- 
tion of  cruel  punishments.  This  was  effected  by  im- 
prisonment in  noisome  dungeons,  by  burning,  mutilation, 
whipping,  branding  and  torture  developed  to  its  highest 
pitch  by  human  ingenuity.     Nothing  in  these  days  can 

*  See  Exodus  xxi,  23-25. 


THE   JUDICIAL   DEPARTMENT  185 

be  said  in  justification  of  such  a  theory.  Experience 
shows  that  severity  of  punishment  does  not  deter  men 
from  committing  crime.  The  infliction  of  it  in  pubhc 
even  tends  to  multiply  crimes  owing  to  the  fascination 
involved  in  such  awful  notoriety.  Judges  and  jury 
would  hesitate  in  modern  times  to  inflict  such  punish- 
ments and  they  are  regularly  forbidden  by  law.  They 
are  still  inflicted  under  lynch  law  at  times  when  men  are 
overcome  by  violent  passions  and  vindictive  emotions. 
In  medieval  Europe,  as  well  as  throughout  the  Orient, 
a  belief  in  the  efficacy  of  torture  resulted  in  its  use  in  the 
The  use  of  case  of  persous  strongly  suspected  of  crime, 
InTthe  against  whom,  however,  there  was  insufficient 
ordeal.'  evidence  to  convict,  or  whose  evidence  it  was 
thought  might  inculpate  others.  These  persons  were  put 
to  the  torture  on  the  theory  that  persons  suffering  bodily 
anguish  will  tell  the  truth.  The  fact  is,  that  as  a  rule 
they  will  tell  anything  their  torturers  wish  them  to  con- 
fess. The  use  of  torture  was  strengthened  by  the  belief 
that,  if  only  guilty  persons  could  be  brought  to  confess 
the  truth,  it  would  help  in  the  salvation  of  their  souls — 
a  theological  teaching  that  resulted  in  the  damnation  of 
more  souls  than  it  saved.  A  peculiar  form  of  punish- 
ment developed  in  many  parts  of  the  world  and  in  early 
Europe  as  the  result  of  religious  ideas.  WTien  men  de- 
sired to  do  justice  and  yet  realiz^  how  imperfect  judi- 
cial machinery  was  in  the  detection  of  crime,  it  occurred 
to  them  that  the  guilt  or  innocence  of  the  accused  might 
safely  be  left  with  God.  In  consequence  there  developed 
a  system  of  ordeals,  oaths  and  judicial  combats,  the  out- 

'  See  Lea  in  Bibliography. 


186  THE   DEVELOPMENT   OF   THE   STATE 

come  of  which  determined  the  punishment  or  acquittal 
of  the  accused.  On  the  face  of  it  such  a  system  seems 
puerile,  and  it  is;  yet  it  had  its  utility  in  a  credulous  age 
where  all  men  really  believed  that  God  would  in  every 
trial  strengthen  and  protect  the  innocent  and  weaken  the 
guilty.  It  failed  when  men  lost  faith  in  God's  interven- 
tion in  such  matters,  and  devised  ways  and  means  of 
evading  the  chances  of  failure  by  bribery  and  trickery. 

The  penal  systems  of  the  nineteenth  century  present 

a  complex  of  many  former  stages.     Hanging  for  murder 

is  a  form  of  lex  talionis.     Hanging  for  other 

Modern  . 

penal  crluies  and  solitary  confinement,  ami  to  deter 

systems.  ^j^^  commitment  of  such  crimes.  The  system 
of  fines  carefully  graded  to  fit  each  offense  is  still  in  vogue 
but  reserved  for  minor  crimes.  More  serious  offenses  are 
usually  punished  by  imprisonment,  not  so  much  to  deter 
others  from  crime  as  to  segregate  criminals  from  social 
life.  Nor  are  prisons  as  a  rule  horrible  dungeons  as 
formerly;  they  often  furnish  far  better  accommodations 
than  those  the  average  workingman  enjoys.  Prisoners 
are  still  compelled  to  work,  but  rather  with  the  thought 
of  utility  to  the  prisoner  than  of  actual  gain  derived  from 
his  labor. 

Modern  penal  systems  are  undergoing  rapid  trans- 
formations. Prevention  and  reformation  are  the  watch- 
words of  the  new  cen^ry.  Careful  study  of  the  causes 
of  crime,  a  better  knowledge  of  psychology  and  of  the 
respective  influences  of  heredity  and  environment  give 
grounds  for  hope  that  a  large  part  of  crime  can  be  pre- 
vented and  that  many  criminals  can  be  reformed  and 
made  into  useful  citizens.     It  is  argued  that  the  irre- 


THE   JUDICIAL   DEPARTMENT  187 

claimable  should  be  kept  imprisoned  permanently  for 
tlieir  own  sakes,  and  especially  for  the  sake  of  society. 
Such  theories  are  rapidly  modifying  the  methods  in  use. 
Probation  and  right  training  in  reform  schools  are  tak- 
ing the  plape  of  the  fine  and  the  prison,  and  habitual 
criminals  are  permanently  imprisoned  under  indetermi- 
nate sentences  that  they  may  no  longer  have  opportunity'' 
to  commit  other  serious  crimes.  In  short,  society  aims 
to  give  every  person  a  fair  chance,  and  to  protect  itself 
fully  agamst  those  who  refuse  to  avail  themselves  of  it. 

SPECIAL  REFERENCES 

Judiciary  Systems:  Anson,  Inderwick,  Baldwin. 

The  Jury  System:  Lessek;  American  Historical  Review,  vol. 
viii,  p.  4,  C.  H.  Haskins,  "  The  Early  Norman  Jury"; 
"American  Historical  Association,"  1894,  pp.  125-140,  W. 
B.  ScAiFE,  "Some  European  Modifications  of  the  Jury 
System";  Political  Science  Quarterly,  vol.  xix,  p.  650,  B.  E. 
Howard,  "Trial  by  Jury  in  Germany";  Matias  Romero, 
"Mexico  and  the  United  States,"  pp.  401-428.  Article 
on  "  The  Anglo-Saxon  and  Roman  Systems  of  Criminal 
Jurisprudence." 


CHAPTER  IX 

THE   LAWMAKING   DEPARTMENT 

As  the  wealth  and  population  of  a  state  increase,  it 
becomes  more  and  more  difficult  to  govern  along  auto- 
cratic lines.     Numerous  interests  arise  which 

Rise  of  a 

lawmaking  do  not  reccive  adequate  attention  from  the 
°^^*  rulers;  men  whose  capacity  and  attamments 

deserve  recognition  are  slighted,  and  the  private  inter- 
ests of  ruling  classes  absorb  most  of  their  energy,  to  the 
neglect  of  public  interests.  Under  such  conditions  there 
are  historically  several  possibilities  of  action : 

(1)  The  status  quo  may  be  maintained  and  discontent 
suppressed  by  force,  in  which  case  the  state  would  prob- 
ably slowly  decay  mitil  absorbed  by  some  rival  after  de- 
feat in  war. 

(2)  A  system  of  decentralization  may  be  encouraged, 
and  each  important  province  be  allowed  to  regulate  its 
own  affairs  subject  to  general  supervision  and  tribute, 
the  provinces  being  held  together  by  nmtual  interests. 

(3)  The  central  authority  may  retain  its  power  but 
gradually  develop  a  system  of  representation  whereby 
important  interests  and  persons  may  receive  due  recog- 
nition. 

This  last  possibility  involves  a  national  application  of 
the  idea  contained  in  the  organization  of  a  primitive 
horde  or  village  community.     All  interests  and  pennons 

188 


THE  LAWMAKING   DEPARTMENT  189 

of  importance  were  included  in  the  small  gatherings  of 
these  early  groups.  Even  in  confederate  tribal  life  the 
idea  had  survived  in  the  periodic  gatherings  of  heads  of 
tribes  and  districts  to  administer  general  business.  So 
in  the  assemblies  of  the  city  states  of  the  classic  period, 
every  important  citizen  was  able  to  make  his  influence 
felt  in  the  assembly  if  he  were  so  inclined.  The  difficulty 
was  to  apply  the  principle  to  a  great  national  system, 
and  no  ancient  state  ever  proved  equal  to  the  emergency. 
Local  representation  was  common  enough,  and  repre- 
sentation of  privileged  classes  in  great  councils  was 
known,  but  no  system  was  devised  whereby  the  interests 
of  all  the  people  might  be  represented  in  government. 

Through  a  series  of  events  natural  enough  in  them- 
selves, there  developed  in  England  during  the  thirteenth 
^^^  century  an  assembly  of  delegates,  who  repre- 

Engiish  sented  the  common  people  and  petty  nobility, 
par  amen  .  ^^  distinguished  from  the  usual  assembly  of  the 
higher  nobility  and  clergy.  Such  an  assembly  was  by 
no  means  an  anomaly  at  that  time.  A  rude  form  of 
representation  existed  among  the  Scandinavian  people  as 
early  as  the  ninth  century.  About  the  tenth  century  the 
Icelandic  Althing  ^  and  the  Tynwald  of  the  Isle  of  Man  2 
(which  still  survives)  were  established.  These  were 
made  up  of  elected  delegates  who  prepared  laws,  which 
were  promulgated  as  the  law  of  the  land.  Similar  bodies 
may  be  traced  in  other  countries  of  Europe,  but  they  did 
;  not  attain  political  importance.    The  English  assembly 

1  Constitution  of  Ulfliot,  a.d.  930.  See  Bryce's  "Studies," 
Essay  V. 

*  See  Caine's  "Little  Manx  Nation." 


190  THE   DEVELOPMENT   OF  THE   STATE 

came  when  that  country  was  breaking  away  from  agri- 
culture and  developing  commerce  and  manufactures,  and 
when  kings,  ever  engaged  in  war  or  the  suppression  of  re- 
bellion, were  forced  to  rely  more  and  more  upon  the  sup- 
port of  the  common  people  and  on  taxes  raised  from 
urban  centers.  So  constantly  was  the  king  in  need  of 
money  grants  and  military  support,  that  the  first  two 
hundred  years  of  the  history  of  the  assembly  of  the 
commons  marked  an  almost  steady  growth  in  its  power 
and  prestige.  During  the  sixteenth  century  the  historic 
council  of  nobles  and  clergy,  who  formed  the  house  of 
lords,  was  relatively  weak.  This  was  due  to  its  deple- 
tion in  numbers  owing  to  the  civil  wars  and  to  the 
nationalization  of  the  church,  which  deprived  that  body 
of  much  of  its  power  and  representation.  In  conse- 
quence the  two  houses  during  the  Tudor  period  were 
fairly  equal,  and  were  firmly  welded  together  into  a 
parliament.  The  rapid  development  of  commerce  and 
manufactures  under  the  Tudors  and  Stuarts  (1485-1688) 
gradually  transferred  the  balance  of  power  from  the 
lords  to  the  commons  as  the  representatives  of  these  in- 
terests, and  the  rise  of  England  to  world  supremacy  in 
the  nineteenth  century  made  the  commons  supreme  in 
governmental  policy. 

The  political  importance  of  this  development  lies  in 
the  fact  that  it  revolutionized  men's  notions  of  govern- 
importance  mental  machinery.  The  ancient  principle  of 
maldn^"  govcming  through  privileged  classes,  basing 
body.  their  claims  on  noble  birth  and  landed  wealth, 

was  superseded  by  a  system  of  government  through  per- 
sons who  represented  all  the  important  interests  of  the 


THE   LAWMAKING   DEPARTMENT  191 

state,  and  who  had  influence  in  proportion  to  the  weight 
of  interests  and  the  proportion  of  the  population  they 
represented.  The  economic  advantages  of  such  a  system 
were  so  plainly  manifest  that  other  nations  found  it  ex- 
pedient to  imitate  it,  modifying  the  English  system  to 
suit  their  own  peculiar  needs.  In  this  way  developed 
the  modern  bicameral  legislative  body,  the  center  and 
pivot  of  the  modern  democratic  movement.  Naturally 
enough,  some  of  these  systems  of  legislative  representa- 
tion are  not  truly  representative,  but  it  must  be  under- 
stood that  a  true  system  of  representation  is  an  ideal 
toward  which  modern  governmental  organization  ap- 
proximates. States  are  constantly  experimenting  with 
patented  devices  for  the  improvement  of  governmental 
machinery.  Hence  such  suggestions  as  those  for  minor- 
ity or  proportional  representation,  the  use  of  the  initia- 
tive and  the  referendum,  improved  primary  and  elec- 
tional  laws  and  the  regulation  of  political  parties.  It  is 
not  to  be  assumed  that  an  ideal  system  of  representation 
would  be  best  under  existing  conditions.  It  would  de- 
mand for  its  exercise  a  lively  intelligent  interest  in  public 
affairs  by  all  the  citizens,  and  that  condition  has  hardly 
been  yet  attained  in  any  state.  For  this  reason  a  system 
in  which  the  balance  of  power  is  in  the  hands  of  the 
wealthy  and  intelligent  classes  may  prove  more  success- 
ful in  some  states  than  a  strongly  democratic  system. 
Every  state,  however,  should  endeavor  to  increase  the 
prosperity  and  intelligence  of  all  its  citizens,  and  to  ex- 
pand its  system  of  representation  so  as  to  include  all 
persons  who  have  a  tangible  and  intelligent  interest  in 
the  welfare  of  the  state. 


192  THE   DEVELOPMENT   OF   THE   STATE 

The    chance    development    of    the    Enghsh    council 

through   social   distinctions   into   two   houses   set   the 

fashion  for  other  states  also.    The  confedera- 

The 

bicameral  tion  of  the  United  States  of  America  preferred 
sysem.  ^  unicameral  congress,  and  this  was  favored 
for  a  time  by  revolutionary  France.  This  French  sys- 
tem was  imitated  by  several  of  the  other  Latin  states 
and  still  survives  in  Central  America  and  in  Santo  Do- 
mingo. The  best  argument  for  the  bicameral  system 
seems  to  consist  in  the  opportunity  thereby  allowed  for 
the  balancing  of  varying  interests  and  the  consequent 
check  on  too  hasty  legislation. 

Historically,  the  prototype  of  the  lawmaking  body  was 
the  collective  body  of  elders  found  in  all  early  states.  In 
Com  osi-  ^^^^  gathering  met  all  persons  of  consequence  in 
tion  of  the  those  petty  communities.  When  the  state  had 
miking  arisen  to  the  dignity  of  a  kingdom  or  empire, 
*'*"*y-  the  council  consisted  of  royal  princes,  great 

nobles,  heads  of  administration  and  religion,  and  of  per- 
sons famous  for  their  wisdom. ^  In  classic  times  grew  up 
a  larger  council,  supplementing  the  work  of  the  older 
body,  and  including  in  its  ranks  the  warriors,  freemen  or 
citizenship  of  the  state.  The  feudal  councils  of  medieval 
monarchies  emphasized  the  necessity  of  the  representa- 
tion in  the  king's  council  of  all  important  districts 
through  their  leading  nobility.  As  municipalities  be- 
came important  through  their  wealth  and  population, 
these  also  were  deemed  worthy  of  representation, 
through  delegates  appointed  or  chosen  by  the  corpora- 

'  The  Vermont  Constitution  still  assumes  that  legislators  are 
"  persons  most  noted  for  wisdom  and  virtue"  !     Chapter  II,  Sec.  8. 


THE  LAWMAKING   DEPARTMENT  193 

tions  of  the  municipalities.  The  representation  of  shires 
or  counties  in  the  Enghsh  system  virtually  meant  at 
first  representation  of  the  lesser  nobility.  When  modern 
democracy  began,  emphasis  was  placed  on  human  be- 
ings, irrespective  of  rank,  official  position  or  wealth. 
These  developments  broadly  illustrate  the  various  fac- 
tors that  have  entered  into  the  composition  of  lawmak- 
ing bodies.  These  bodies,  in  other  words,  are  made  up 
of  heads  of  communities  and  men  of  personal  capacity, 
persons  of  dignity  who  represent  nobility  of  birth,  large 
landed  wealth  or  important  offices  in  church  or  state; 
persons  who  represent  the  collective  wealth  of  a  locality 
or  persons  who  represent  collective  bodies  of  men  irre- 
spective of  wealth.  Monarchies  regularly  emphasize 
birth,  social  standing,  office  and  wealth;  democracies  in- 
cline to  emphasize  persons  and  wealth. 

In  modern  monarchies  the  lawmaking  body  has  its 
upper  house  made  up  of  members  of  the  nobility  and  of 
the  chief  dignitaries  of  administration  and  religion;  its 
lower  house  will  generally  be  composed  of  representa- 
tives from  localities,  on  the  basis  of  wealth  or  population, 
but  as  a  rule  discriminating  against  the  poorer  and  illit- 
erate classes.  Republics  seek  to  embody  in  the  upper 
house  the  larger  interests  of  the  state  as  against  pettier 
interests  in  the  lower  house.  In  federations  the  com.- 
mon wealths  are  represented  as  such  in  the  upper  house, 
and  population  and  wealth  in  the  lower  house.  In  the 
commonAvealths  of  the  United  States  of  America,  the 
tendency  is  to  make  the  upper  house  represent  popula- 
tion areas  about  three  times  as  large  as  those  of  the  lower 
house.    As  a  rule  there  is  no  fixed  principle  in  regard  to 


194  THE   DEVELOPMENT   OF   THE   STATE 

the  relative  size  of  the  two  houses.  The  upper  house  is 
regularly,  but  not  necessarily,  smaller  than  the  lower. 
Large  bodies  are  so  cumbersome  that  the  tendency  is  to 
reduce  the  relative  numbers  in  both  houses,  but  many 
local  factors  modify  this  tendency. 

In  monarchies,  kings  or  emperors  regularly  initiate  all 

bills  through  their  ministers.     Members  by  favor  may 

make  suggestions  in  the  form  of  petitions.     In 

Initiation     constitutional   monarchies  all  members  have 

of  bills.' 

the  right  to  introduce  bills  and  regularly  do 
present  bills  of  a  local  or  private  nature.  It  has,  how- 
ever, become  the  practice  to  allow  only  partj''  leaders,  or 
a  responsible  ministry,  to  present  all  bills  of  importance. 
Such  bills  are  prepared  with  great  care  and  represent  the 
policy  of  those  in  power.  In  republics  the  members  of 
either  house  may  initiate  bills.  In  some  federations  the 
commonwealths  may  have  the  right  to  introduce  bills 
directly,  as  in  Mexico,  or  in  democracies  the  electorate 
may  exercise  the  same  privilege  through  the  iniiiative. 

Besides  these  formal  methods  of  initiating  legislation, 
there  are  other  ways  whereby  matters  involving  legisla- 
tion may  come  before  the  legislature : 

(1)  The  executive  may  make  suggestions  to  the  legis- 
lature requesting  legislation  along  specified  lines.  Such 
suggestions  are  frequently  made  by  administrative  de- 
partments with  the  approval  of  the  executive. 

(2)  Committees  or  commissions  are  frequently  author- 
ized to  consider  questions  of  policy  and  to  recommend 
to  the  legislature  suitable  lines  of  action. 

(3)  A  citizen  or  body  of  citizens  may  exercise  the 

^  See  pages  220-223. 


THE   LAWMAKING   DEPARTMENT  195 

right  of  petition  and  request  the  legislature  to  grant  re- 
lief in  certain  specified  matters.  The  legislature  is  not 
bound  to  follow  such  suggestions,  and  may  ignore  them 
altogether  or  adopt  them  as  may  seem  most  expedient 
at  the  time.  Whenever  it  may  seem  advisable,  legisla- 
tures may  authorize  the  holding  of  public  hearings,  at 
which  all  persons  interested  in  the  success  or  defeat  of 
the  proposed  bill  are  invited  to, be  present  and  present 
their  reasons.  This  device  enables  a  lawmaking  body  to 
keep  in  closer  touch  with  public  opinion  than  otherwise 
would  be  possible. 

In  the  development  of  lawmaking  powers,  certain  privi- 
leges have  become  fundamental  in  theory.  A  house 
Privileges  J^ust  have  the  right  to  decide  disputes  in  re- 
ofiegisia-     gard  to   its   membership,  such   as   contested 

tures  and 

legisia-  elections.  It  may  delegate  the  decision  of  such 
*°''®'  contests  to  the  courts,  as  in  England,  but  the 

final  power  must  reside  in  the  house.  It  must  be  able 
to  punish  its  members  for  unseemly  conduct,  to  coerce 
others  to  obey  its  lawful  orders,  and  to  maintain  its 
dignity  by  punishment  for  contempt.  Its  members, 
even  when  going  and  coming,  must  be  free  from  arrest 
except  for  serious  crimes;  they  must  be  allowed  freedom 
of  debate  without  fear  of  future  accountability,  and  their 
dignity  as  representatives  must  be  fully  secured.  Each 
house  must  also  have  the  right  to  make  its  own  regula- 
tions and  its  rules  of  procedure. 

These  rules  vary  greatly  in  different  bodies,  but  are 
always  important.  They  provide  for  reading  of  bills, 
discussions,  amendments  and  passage,  carefully  specify- 
ing each  step  with  the  purpose  of  allowing  no  bill  to 


196  THE   DEVELOPMENT   OF   THE   STATE 

pass  until  each  member  of  the  house  has  full  knov/ledge 

of  its  contents  and  opportunity  to  express  an  opinion 

for  or  against  the  bill.     To  this  end  bills  are 

Rules  of      j.gg^(-j  several  times,  debated  either  before  a  com- 

procedure.  ' 

mittee  or  in  the  presence  of  the  house,  thrown 
open  to  amendment,  and  when  finally  submitted  for 
passage  each  member  must  be  allowed  full  freedom  in 
voting.  If  comparative!}^  few  bills  are  presented  in  a 
session,  procedure  is  simple.  As,  however,  the  number 
of  bills  increases  with  democracy  and  growth  in  national 
importance,  pressure  for  time  compels  modification  in 
the  system.  This  may  be  (1)  in  the  form  of  restrictions 
on  debate  by  limitations  on  the  time  allowed  for  it,  and 
by  the  use  of  the  closure  and  the  previous  question,  or  (2) 
by  making  a  distinction  between  bills  which  affect  the 
public  as  a  whole  and  those  which  relate  to  private 
persons,  localities  and  details  of  administration.  His- 
torically, legislatures  have  handled  all  kinds  of  bills  and 
passed  them  by  the  same  kind  of  procedure,  TJie  result 
is  that  the  larger  part  of  legislative  activity  may  be  spent 
on  what  is  really  administration.  Lawmaking  bodies, 
through  their  control  over  finances,  have  to  spend  much 
time  in  devising  efficient  ways  and  means  of  raising  and 
expending  moneys  and  in  the  supervision  of  expenditures. 
English-American  systems,  through  their  fondness  for 
working  out  the  details  of  legislation,  pass  numerous 
laws  designed  to  suit  particular  cases  or  special  emer- 
gencies; matters  usually  left  in  other  states  to  the  or- 
dinance power  of  the  executive  or  to  some  department  of 
administration.  Such  bodies,  therefore,  besides  having 
real  legislative  functions  in  the  formulation  of  policy 


THE   LAWMAKING   DEPARTMENT  197 

through  law,  also  exercise  a  vast  ordinance  or  adminis- 
trative power  which  is  liable  to  be  used  in  a  perfunctory 
or  inefficient  manner.  By  far  the  larger  part  of  the  un- 
popularity of  modern  legislatures  is  due  to  the  evils 
arising  from  this  confusion  of  legislative  and  adminis- 
trative functions.  In  modern  days  the  pressure  of  busi- 
ness is  compelling  a  different  procedure  for  private  or 
local  bills  so  that  the  time  of  the  whole  house  need  not 
be  wasted.  Such  bills  may  be  referred  to  committees, 
whose  decision  will  be  accepted  as  a  matter  of  course; 
or  classes  of  private  bills  may  be  assigned  to  an  adminis- 
trative or  judicial  body  for  settlement  in  accordance  with 
some  principle  laid  down  by  the  legislature.  Such  a 
distinction  is  important  because  the  number  of  private 
bills  introduced  is  always  large,  usually  more  in  number 
than  public  bills,  and  public  interests  have  to  be  neg- 
lected when  so  much  attention  is  given  to  matters  of 
small  public  importance.^ 

When  legislative  business  becomes  too  large  entirely 
to  be  handled  by#he  houses  even  with  the  above  regu- 
^^^  lations,  then  a  committee  system  is  inevitable, 

committee  It  may  (1)  take  a  form  like  that  of  the  English 
^''^  ^™'  cabinet,  which  is  practically  a  legislative  com- 
mittee for  the  formulation  of  policy,  the  preparation  of 
important  bills  and  advocacy  of  them  before  the  houses. 
Or  (2),  as  in  the  French  system,  committees  may  be  ap- 
pointed by  the  lawmaking  bodies  to  consider,  modify  and 
report  on  ministerial  bills  and  such  others  as  may  be 
referred  to  them,^  or  (3),  lacking  a  cabinet  system  for 

'  See  "Our  State  Constitutions,"  pp.  46-54. 
2  See  Lowell,  vol.  i,  pp.  111-117. 


198  THE   DEVELOPMENT   OF  THE  STATE 

the  initiation  of  bills,  as  in  the  United  States  of  America, 
all  bills  may  be  referred  to  standing  committees  of  the 
respective  houses,  which  are  authorized  to  investigate 
them  thoroughly  and  to  make  recommendations.  This 
committee  system  has  become  so  important  in  the  United 
States  of  America  that  it  has  almost  usurped  the  deliber- 
ative function  of  the  lawmaking  bodies.  All  bills  when 
entered  in  the  houses  are  promptly  referred  to  com- 
mittees, which  derive  their  importance  from  the  nature 
of  the  business  intrusted  to  them.  Most  of  these  bills 
are  pigeonholed  and  are  never  reported,  a  few  may  be 
reported  adversely  or  without  recommendation,  and 
others,  after  investigation,  public  hearings,  amendments 
and  perhaps  complete  revisions  in  committee,  are  re- 
ported favorably.  The  pressure  of  time  is  usually  so 
great  that  debate  seldom  arises  over  the  reports  except 
when  the  subject  is  of  great  importance  and  involves 
political  interests.  These  committees  are  so  arranged 
that  the  dominant  party  controls  the  results  of  their  de- 
cisions. The  chairmen  of  the  chief  committees  are  also 
leaders  of  that  party  and  form  a  sort  of  inner  circle,  not 
unlike  the  English  cabinet,  for  formulation  of  policy. 
Some  one  person  is  selected  as  head  leader  and  placed 
either  in  the  chair  of  the  house  with  autocratic  powers, 
or  in  the  chairmanship  of  one  of  the  principal  committees 
and  authorized  to  guide  the  party  on  the  floor  of  the 
house.  The  committee  system  is  open  to  many  objec- 
tions, based  chiefly  on  its  secrecy  of  procedure  and  its 
])ractical  usurpation  of  legislative  functions,  yet  it  is 
plainly  useful  and  under  present  conditions  necessary. 
Time  may  remedy  its  defects  or  substitute  in  part  a 


THE   LAWMAKING   DEPARTMENT  199 

system  that  may  insure  greater  responsibility  and  sus- 
ceptibility to  public  opinion. 

The  passage  of  bills  by  a  legislature  does  not  always 
imply  that  such  bills  at  once  become  laws.  There  are 
usually  general  or  special  provisions  specifying 
power!'"  at  what  times  the  bills  shall  take  effect.  In  ad- 
dition to  this  almost  all  states  place  in  the 
executive's  hands  the  veto  power.  This  may  be  abso- 
lute or  suspensive.  In  the  first  case  an  executive's  veto 
kills  the  bill  and  the  labor  of  the  legislature  has  been  in 
vain.  In  the  second  case  the  bill  is  sent  back  for  re- 
consideration. If  on  reconsideration  the  bill  again 
passes,  no  further  veto  is  interposed.  The  absolute  veto 
is  used  only  in  monarchical  systems.  The  use  of  the 
English  cabinet  system  virtually  makes  this  veto  obso- 
lete, for  all  bills  submitted  to  the  king  for  signature 
have  been  approved  by  his  cabinet,  and  under  such  cir- 
cumstances the  king  would  not  venture  to  oppose  the 
combined  wishes  of  his  cabinet  and  lawmaking  body. 
In  some  states,  also,  before  bills  are  finally  passed,  they 
must  be  submitted  to  the  electorate  for  approval  or  re- 
jection. This  form  of  veto,  known  as  the  referendum, 
is  found  only  in  countries  where  democratic  influences 
are  powerful. 

When  the  English  house  of  commons  began  to  exert 
its  powers,  it  was  almost  entirely  under  the  control  of  the 
Formula-  exccutive,  who  sent  his  ministers  into  the 
1'°"°^.       house  and  tried  to  dictate  or  influence  its  de- 

legislative 

policy.  cisions.  This  was  the  reason  why  the  house 
fought  so  vigorously  to  control  the  appointment  of  the 
king's  ministers,    When  this  had  been  accomplished,  the 


200  THE   DEVELOPMENT   OF   THE   STATE 

house  was  thereby  able  to  dictate  to  the  king  his  pohcy. 
It  is  inconceivable  that  a  wise  king  would  refuse  to  accept 
the  advice  of  a  ministr}^  who  represented  the  will  of  a 
dominant  parliament.  There  are,  therefore,  two  great 
monarchical  systems  for  the  formulation  of  govern- 
mental and  legislative  policy:  (1)  the  will  of  an  auto- 
cratic king  expressed  through  his  ministers,  or  (2)  the 
will  of  a  parliament  expressed  through  a  ministry  forced 
on  the  king.  The  essence  of  the  distinction  is  best  ob- 
tained by  noting  whether  the  ministiy  is  responsible  to 
the  king  only,  or  to  the  parliament.  A  system  like  that 
of  Germany  or  Austria-Hungary  balances  between  the 
two. 

In  the  United  States  of  America,  owing  to  the  use  of 
separated  coordinated  departments,  the  English  system 
^^^  was  not  feasible.     How  legislative  policy  should 

American  bc  formulatcd  uudcr  such  conditions  was  a 
sys  em.  problem.  At  first  the  president,  aided  by 
prominent  members  of  the  congress,  dictated  this  policy, 
and  this  system  might  have  become  permanent  had  the 
president's  views  regularly  harmonized  with  the  opinions 
of  congress.  This,  however,  was  seldom  true  after  1824, 
and  in  consequence  each  house  developed  a  system  of 
voicing  its  policy  through  a  legislative  caucus.  The 
members  of  the  dominant  party  in  either  house  meet  in 
private  session,  formulate  a  policy  and  intrust  the  exe- 
cution of  it  to  their  natural  leaders,  who,  as  chairmen  of 
the  principal  committees,  are  able  to  control  legislation. 
In  the  house  these  powers  are  centered  in  the  speaker, 
who,  subject  always  to  the  approval  of  his  party  follow- 
ing,  directs    the  machinery  of  the  house  toward   the 


THE   LAWMAKING    DEPARTMENT  201 

accomplishment  of  the  policy  outlined  by  the  caucus. 
The  system  is  practically  the  same  in  both  houses,  except 
that  in  the  senate,  as  the  presiding  officer  is  by  constitu- 
tion the  Vice-President  of  the  United  States  of  America 
and  is  not  subject  to  the  control  of  the  senate,  the  chair- 
men of  the  principal  committees  unitedly  guide  the  sen- 
ate's policy.  In  the  American  system,  therefore,  legis- 
lative policy  is  voiced  through  party  caucuses  under  the 
guidance  of  their  leaders,  who  act  as  chairmen  of  im- 
portant committees  and  thus  control  legislation.  As  the 
president  has  the  veto  power,  if  he  and  the  two  houses 
of  legislation  are  of  the  same  political  party,  frequent 
conferences  will  be  held  so  as  to  settle  on  some  common 
policy.  If  they  are  not  of  the  same  party,  then  important 
legislation  is  either  not  passed  or  is  passed  by  a  series  of 
compromises  after  numerous  joint  conferences  have  been 
held. 

A  legislative  body,  therefore,  in  formulating  its  policy 
will  either  name  the  executive's  council  and  work 
through  them,  or  will  work  through  its  own  leaders  and 
then  seek  to  harmonize  its  policy  as  far  as  possible  with 
that  of  the  .executive  department.  In  the  study  of  any 
state  which  has  a  legislative  department,  therefore,  one 
should  note  carefully  the  respective  powers  of  the  two 
departments  in  the  formulation  of  policy,  and  should  see 
how  harmony  of  purpose  is  attained.  When  the  two 
departments  are  evenly  balanced  in  power,  conflicts  for 
supremacy  may  arise,  as  in  Germany  and  Japan.  In 
Mexico  the  two  departments  are  theoretically  coordinate, 
but  in  reality  the  executive  dictates  legislative  policj^ 
France  uses  the  English  cabinet  system  in  form,  but  the 


202  THE   DEVELOPMENT   OF  THE   STATE 

legislative  leaders  of  the  chamber  of  deputies  dictate 
the  policy  to  be  followed  by  the  cabinet  much  more  fully 
than  do  the  leaders  in  the  English  house  of  commons. 

In  tribal  communities,  popular  assemblies  made  up  of 
warriors  or  freemen  usually  have  merely  the  power  of 
Powers  of  asscnt  or  dissent  to  proposals  submitted  by  the 
thepopu-     smaller  council  of  leaders.     The  large  powers 

lar  assem-  "^      '■ 

biy.  exerted  by  the  popular  assemblies  of  Athens 

and  Rome  are  familiar  to  all  students  of  the  classics. 
When  the  English  house  of  commons  began  its  existence 
in  the  thirteenth  century  its  powers  were  extremely 
meager.  It  met  simply  to  advise  the  king  in  regard  to 
the  amount  of  taxes  its  members  would  be  willing  to 
have  assessed  on  their  constituencies.  But  the  com- 
mercial instinct  of  quid  pro  quo  soon  led  these  delegates 
to  a  series  of  bargainings,  whereby  each  grant  of  money 
on  their  part  resulted  in  the  gain  of  privileges  extorted 
from  the  king  and  nobility.  Each  class  naturally  legis- 
lates for  its  own  interests,  and,  during  the  regime  of  king 
and  nobles,  commoners  had  secured  only  the  crumbs. 
But  on  the  other  hand,  as  they  came  into  power  they  se- 
cured for  themselves  more  and  greater  concessions,  until 
they  won  as  their  right  supremacy  in  legislation  and  in 
governmental  policy.  This  really  amounts  to  a  revolu- 
tion in  governmental  systems.  In  place  of  an  auto- 
cratic monarch,  the  fountain  of  law  and  justice,  sur- 
rounded by  nobility  and  clergy  as  bulwarks  of  the 
throne,  aiding  him  by  advice,  arms  and  spiritual  terrors, 
there  has  developed  an  autocratic  assembly  which  allows 
the  king  to  remain  in  office  during  good  behavior,  but 
reserves  the  privilege  of  beheading  or  removing  him  at 


THE   LAWMAKING   DEPARTMENT  203 

will,  and  which  forces  him  to  accept  as  his  cabinet  its 
own  leaders  and  to  formulate  a  policy  in  governmental 
matters  only  after  consultation  with,  and  approval  of,  the 
cabinet.  It  is  evident  that  such  a  body,  though  nomi- 
nally legislative,  is  more  than  that,  for,  through  its  lead- 
ers and  by  its  lawmaking  and  constituent  powers,  it  guides 
and  controls  the  entire  business  of  the  state,  executive 
and  judicial  as  well  as  legislative.  This  rise  of  a  popular 
assembly  into  power  depends,  as  already  explained,  on 
the  development  of  large  commercial  and  manufacturing 
interests.  The  spirit  of  an  autocratic  monarchy  seems 
to  find  its  best  expression  in  a  state  which  relies  chiefly 
on  agriculture.  The  stability  and  uniformity  of  that 
life  seem  best  to  suit  the  conservative  instincts  of  king 
and  nobility.  Commercialism  tends  to  introduce  a 
more  flexible  executive  system;  it  weakens  belief  in  the 
divine  right  of  king  and  nobility  and  demands  leaders  in 
sympathy  with  commercialism  and  capable  of  readjust- 
ing the  political  system  to  the  changing  conditions  of  the 
age.  This  change  may  be  brought  about  conservatively 
by  depriving  king  and  nobility  of  political  power,  but  re- 
taining them  as  social  "survivals"  or  ornaments;  or, 
more  radically,  by  substituting  in  their  stead  elective 
officials,  who  may  be  removed  from  office  at  stated  times 
or  whenever  necessity  requires. 

So  important  a  change  as  this  is  not  easily  accom- 
plished and  seldom  without  revolution.  The  history  of 
all  commercial  states,  ancient  or  modern,  illustrates  the 
principle.  In  England  the  process  began  by  attempts 
on  the  part  of  the  house  of  commons  to  compel  the 
king  either  to  accept  ministers  named  by  it  or  to  consent 


204  TilE   DEVELOPMENT   OF   THE   STATE 

that  ministers  named  b)^  him  be  responsible  to  the 
house.  Bills  of  impeachment  and  bills  of  attainder 
Changes  "^'^^'^  weapons  used  by  the  house  in  the  attain- 
through  ment  of  its  object.  The  Puritan  revolution 
gie  of  and  the  revolution  of  1688  definitely  fixed  the 

interests.  principle  and  applied  it  to  kings  as  well  as  to 
ministers.  The  rise  and  development  of  the  premiership 
in  the  eighteenth  and  nineteenth  centuries  worked  out  a 
sj^stem  whereby  the  real  work  of  government  might  be 
done  by  the  house,  while  retaining  the  forms  and  appear- 
ance of  an  autocratic  monarchy.  The  United  States  of 
America  at  the  adoption  of  its  constitution  went  one  step 
farther  when  it  refused  to  establish  kingship  and  no- 
bility, and  in  their  stead  established  an  elective  head 
assisted  by  ministers  appointed  or  elected  for  definite 
terms,  all  subject  to  removal  on  impeachment  by  the 
lawmaking  body.  Naturally  these  same  principles  apply 
to  the  struggle  for  supremacy  which  generally  arises  be- 
tween the  two  houses  of  legislation.  In  monarchies  they 
represent  distinct  sets  of  interests,  not  always  harmoni- 
ous. Each  desires  to  have  the  final  voice  in  decisions, 
and  victoiy  ultimately  goes  to  that  one  which  represents 
more  truly  the  broader  interests  of  the  nation.  In 
democracies  the  two  houses  tend  to  represent  practically 
the  same  kinds  of  interests,  and  full  cooperation  is 
hindered  only  by  natural  rivalries  based  on  beliefs  as  to 
the  respective  importance  of  the  two  houses. 

The  numerous  functions  of  modern  lawmaking  bodies 
may  be  broadly  classed  under  four  heads,  though  there 
are  many  differences  in  detail  and  in  the  scope  of  powers 
exercised  under  each  head. 


THE   LAWMAKING   DEPARTMENT  205 

(1)  They  have  the  right  to  declare  and  to  formulate 
the  law  of  the  land,  removing  what  has  become  obso- 
^     ,.         lete,   making    clear  what   is  ambiguous,   and 

Functions  >  o  o  j 

of  legisia-  supplying  new  laws  to  suit  the  changing  con- 
ditions of  social  life.  This  flexibility  intro- 
duced into  law  has  enabled  states  to  adapt  themselves 
readily  to  altering  conditions,  a  thing  well-nigh  impossi- 
ble under  ancient  theories  of  fixed  and  unchanging  law. 

(2)  They  have  the  right  to  decide  on  the  amount  of 
tax  to  be  levied  for  governmental  purposes,  the  goods  or 
other  property  on  which  it  should  be  levied  and  to  con- 
trol the  levjdng  and  expenditure  of  such  taxes  by  re- 
serving the  right  to  hold  responsible  and  to  instruct,  or 
even  to  appoint,  all  important  officers  in  charge  of  public 
funds.  This  "power  over  the  purse"  has  been  the  most 
effective  agency  in  enabling  the  lawmaking  body  to  con- 
trol the  other  departments  of  government. 

(3)  Lawmaking  bodies  have  slowly  won  or  are  winning 
the  right  to  dictate  the  policy  of  the  state  in  international 
affairs.  This  historic  power  of  the  executive  is  passing 
under  the  control  of  the  legislative  department,  which 
leaves  to  the  executive  the  form  of  power,  but  exercises 
the  substance  of  it  through  its  control  over  finance  and 
over  the  ministry  or  cabinet  of  the  executive. 

(4)  The  lawmaking  body  in  many  other  ways  is  now 
able  to  exert  power  not  primarily  legislative.  It  may 
exercise  judicial  functions  in  deciding  cases  of  contested 
election,  or  in  trying  its  own  members  or  officers  of  the 
other  departments  of  government.  In  its  usurpation  of 
powers  properly  executive  it  may  appoint,  or  assist  in 
the  appointment,  of  officials,  make  treaties,  declare  war^ 


206  THE   DEVELOPMENT   OF   THE   STATE 

regulate  the  army,  navy  and  civil  service,  appoint  and 
supervise  administrative  commissions  and  regulate  more 
or  less  completely  the  policy  and  administration  of  the 
other  departments  of  government. 

These  classes  of  functions  show  clearly  the  importance 
of  lawmaking  bodies  in  political  development.  Almost 
unknown  in  western  civilization  down  to  the  nineteenth 
century,  except  in  England  and  her  American  colonies, 
they  have  suddenly  pushed  to  the  front  as  agencies  for 
economic  and  democratic  development,  and  have  reached 
perhaps  the  acme  of  their  powers.  Their  natural  limita- 
tions are  now  becoming  manifest,  and  at  present  they  do 
not  enjoy  the  confidence  formerly  placed  in  them.  It 
remains  to  be  seen  whether  by  internal  changes  they 
will  become  more  efficient  and  regain  lost  confidence, 
or  be  superseded  by  more  trustworthy  governmental 
agencies.  1 

SPECIAL  REFERENCES 

Lawmaking  Bodies:  Anson  (vol.  i),  Lowell,  James  West 
Moore,  Pike,  Porritt,  Reinsch,  and  Smith. 

Organization  and  Procedure:  Follett,  Ilbert,  Lowell, 
McConachie;  Political  Science  Quarterly,  vol.  ix,  p.  246, 
J.  F.  Jameson,  "Origin  of  Standing  Committees." 

Lawmaking:  Clarke,  "The  Science  of  Law";  Proceedings  Am. 
Pol.  Sc.  Assn.,  1907,  pp.  69-140,  "The  Making  and  Revision 
of  Law." 

*  For  example,  by  the  constitutional  convention  in  the  making 
of  fundamental  law,  and  by  the  electorate  through  its  use  of  tlie 
initiative  and  the  referendum. 


CHAPTER  X 

THE  LEGAL  SOVEREIGN  AND  THE  ELECTORATE 

The  Legal  Sovereign 

If  one  were  carefully  to  observe  in  any  given  state  the 
several  divisions  of  government,  and  to  note  the  funda- 
A  constitu-  mental  powers  respectively  exercised  by  each, 
tionim-       ^j^(|  ^Y^Q  manner  of  such  exercise,  he  would 

plied  in  the 

organiza-  thereby  become  familiar  with  the  fundamental 
g'°g"y  law,  or  the  constitution  of  the  state.    Every 

state.  state,  whether  democratic  or  autocratic,  has  a 

constitution.  This  is  not  the  same  as  saying  that  every 
state  has  a  constitutional  form  of  government,  which 
would  imply  that  the  rights  of  the  people  are  fairly  well 
secured  by  law  against  possible  governmental  tyranny. 
It  is,  however,  obvious  that  every  state,  no  matter  how 
despotic  or  autocratic  it  may  be,  has  a  form  of  organiza- 
tion, made  up  of  several  departments  exercising  sover- 
eign powers,  and  has  a  well-defined  customary  way  of 
exercising  such  powers.  Such  constitutions  may  not  be 
written,  and  in  most  states  are  not,  yet  jurists  familiar 
with  any  given  state  could  readily  write  out  the  constitu- 
tion of  that  state,  whether  it  be  an  autocracy,  a  federa- 
tion or  a  democracy.  Evidently,  then,  every  state  from 
the  moment  when  it  begins  its  existence  has  a  constitu- 
tion, which  may  be  defined  as  that  fundamental  law  or 
body  of  laws,  written  or  unwritten,  in  which  may  be 

207 


208  THE  DEVELOPMENT   OF  THE   STATE 

found  (a)  the  form  of  the  organization  of  the  state,  (6) 
the  extent  of  power  intrusted  to  the  various  agencies  of 
the  state,  and  (c)  the  manner  in  which  these  powers  are 
to  be  exercised. 

Such  a.  constitution  regularly  voices  the  will  of  the 

dominant  part  of  the  community,  i.  e.,  that  part  which 

contains  the  strength,  wealth  and  intelligence 

The  con-  ,  i  i  • 

stitutionas  of  the  uatiou.  The  persons  who  compose  this 
tativ?oT  dominant  part  will  not  necessarily  themselves 
dominant  f omiulate  the  fundamental  law  of  the  state,  but 
by  formal  appointment  or  tacit  consent  they 
will  permit  some  person  or  body  of  persons  to  order  the 
framework  of  the  organization  of  the  state  and  the 
powers  to  be  exercised  by  its  several  agencies.  In  a 
well-ordered  state  the  constitution  will  fully  and  exactly 
voice  the  wish  and  will  of  the  entire  community,  but 
generally  that  is  rather  the  ideal  than  the  rule.  In  prac- 
tice the  constitution  will  represent,  as  already  said,  the 
will  of  the  dominant  part  of  the  community,  often  to  the 
neglect  and  even  to  the  injury  of  the  interests  of  the  other 
members  of  the  body  politic.  The  aim  of  democracy  is 
to  develop  a  constitutional  system  voiced  in  the  compo- 
sition of  the  lawmaking  body  that  will  allow  all  the  in- 
terests of  the  nation  to  be  adequately  provided  for  in 
the  constitution.  The  Russian  parliament,  mentioned 
on  page  136,  in  the  composition  of  the  upper  house,  and 
in  the  electorate  which  determines  the  membership  of 
the  lower  house,  affords  an  illustration  of  an  aristocratic 
system  of  representation.  Bluntschli,  in  his  "Theory 
of  the  State,"  ^  explains  his  notion  of  the  representation 
1  Book  VI,  Chapter  XXIII. 


LEGAL  SOVEREIGN  AND  THE  ELECTORATE       209 

of  interests;  and  modern  democratic  movements  toward 
some  system  of  minority  or  proportional  representation 
illustrate  another  aspect  of  this  question.  ^ 

As  a  state  in  the  exercise  of  its  sovereignty  may  have 

occasion  from  time  to  time  to  amend  or  even  to  revise 

entirely  its  constitution,  so  as  to  adapt  its  life 

The  legal      ^^  ncwcr  conditions,  there  must  be  in  ev.ery 

sovereign.  '  »' 

state  a  person  or  body  of  persons  recognized 
as  having  the  legal  right  to  perform  such  a  function. 
This  agency  of  the  state  voicing  its  will  in  the  enuncia- 
tion of  its  fundamental  law,  is  the  legal  sovereign.  The 
legal  sovereign,  then,  in  the  exercise  of  its  power  decides 
the  form  of  the  organization  of  the  state,  assigns  powers 
to  the  other  departments  of  government,  prohibits  the 
exercise  of  some  powers  and  designates  the  manner  in 
which  the  several  powers  assigned  must  be  exercised. 
It  may  even  specify  the  manner  in  which  it  will  exercise 
its  own  powers,  but  such  specifications  must  be  con- 
sidered as  constitutional  guaranties,  not  as  limitations 
on  its  activity.  In  other  words,  the  legal  sovereign 
voicing  as  it  does  the  absolute  sovereignty  of  the  state 
cannot  legally  bind  itself  not  to  exercise  any  part  of 
sovereignty.  It  may  give  a  formal  pledge  in  the  nature 
of  a  limitation  of  its  powers,  but  the  binding  force  is 
moral,  not  legal,  for  a  legal  sovereign  unable  to  perform 
its  sovereign  function  would  be  limited  in  its  powers, 
and  hence  not  the  repository  of  the  most  fundamental  of 
sovereign  powers. 

»  See  reference  to  J.  R.  Commons,  at  end  of  chapter,  and  Bulletin 
No.  14,  Proportional  Representation,  Wisconsin  L'^gislative  De- 
partment. 


210  THE  DEVELOPMENT   OF   THE   STATE 

In  exercising  this  great  power  the  legal  sovereign 
should  represent  the  will  of  the  nation,  and,  as  a  rule, 
will  more  or  less  fully  voice  the  desires  of  the  people  as 
a  whole.  As,  however,  states  are  constantly  changing 
the  conditions  that  determine  their  development,  a  legal 
sovereign  designed  in  one  age  to  express  the  will  of  the 
body  politic,  may  in  a  later  age  fail  to  represent  cor- 
rectly that  will.  In  such  a  case  if  the  legal  sovereign 
of  its  own  accord  fails  to  modify  its  composition  so  as 
to  suit  newer  conditions,  a  revolution  will  probably  take 
place  after  a  period  of  dissatisfaction  and  agitation. 
This  is  the  so-called  Right  of  Revolution,  the  right  of  a 
community  which  finds  itself  hindered  in  development 
by  existing  forms,  to  overthrow  these  and  substitute 
others  more  in  accordance  with  the  will  of  the  com- 
munity. Such  a  right  must  of  course  be  justified  on 
moral  grounds;  legally  speaking  all  revolutions  are 
rebellions  and  in  violation  of  law.  ^ 

In  old-fashioned  monarchies  the  legal  sovereignty  will 

naturally  be  found  vested  absolutely  in  the  king,  or  in 

,  the  king  and  his  council,  under  the  theory 

Location  of  "  . 

legal  that  these  truly  represent  the  larger  interests 

sovereignty.  ^^  ^^^^  state.  lu  such  cascs  the  king,  or  the 
king  and  his  council,  may  alter  at  will  the  fundamental 
law  of  the  land.  The  inertia  of  custom  and  the  fear  of 
revolution  or  assassination  may  deter  the  king  from 
making  unpopular  alterations,  but  if  any  changes  at  all 
are  legally  to  be  made,  he  is  the  proper  agency  to  decide 
on  and  to  enunciate  them.  If  in  such  a  state  a  repre- 
sentative council  or  a  legislature  should  develop,  this 

*  But  for  a  legal  basis  for  rebellion,  see  Article  61,  Magna  Charta. 


LEGAL   SOVEREIGN   AND  THE   ELECTORATE     21 1' 

body  may  gain  the  right  to  share  in  the  exercise  of  this 
power,  and  the  three  bodies,  king,  council  and  legisla- 
ture would  then  form  the  legal  sovereign,  as  in  England. 
In  a  similar  manner  the  powers  of  the  legal  sovereign 
may  pass  entirely  from  the  head  of  the  state  to  the  law- 
making body,  as  in  France,  or  to  the  lawmaking  body 
and  the  electorate,  as  in  Switzerland.  If  the  state  be 
completely  democratic,  the  electorate  alone  would  ex- 
ercise that  power.  This  stage  has  almost  been  reached 
in  Switzerland,  through  the  use  of  the  initiative  and 
the  referendum,  and  in  some  of  the  commonwealths  of 
the  United  States  of  America  through  the  use  of  the 
constitutional  convention.  In  a  federative  form  of 
government,  the  federal  lawmaking  body,  combined 
with  the  lawmaking  bodies  of  the  federated  common- 
wealths, may  constitute  the  legal  sovereign,  as  in  the 
national  system  of  the  United  States  of  America. 

In  respect  to  legal  sovereignties  located  in  lawmaking 
bodies,  as  in  Great  Britain,  France  and  the  United  States, 
it  might  properly  be  maintained  that  the  electorate  also 
should  be  considered  as  legally  a  part  of  the  legal  sov- 
ereign, so  far  as  it  has  the  right  to  determine  by  election 
the  membership  of  the  parliament  or  legislative  body. 
This  would  certainly  be  true  if  the  electorate  had  also 
the  right  of  instruction  and  of  recall.  If,  however,  the 
lawmaking  body,  when  elected,  has  full  discretion  in 
respect  to  its  policy,  irrespective  of  instructions  from 
constituencies,  it  may  be  better,  on  the  whole,  to  con- 
sider that  body  for  all  practical  purposes  as  the  legal 
sovereign. 

In  an  absolute  form  of  government  the  personal  sov- 


212  THE   DEVELOPMENT  OF  THE  STATE 

ereign  will  also  be  the  legal  sovereign,  but  the  double 
aspect  of  the  sovereign  under  such  conditions  is  clear. 
Similarly  if  a  legislature  happens  to  be  also  the  legal 
sovereign,  it  is  always  possible  to  distinguish  between 
the  legislature  as  a  constituent  and  as  a  legislative 
body.  1  Likewise,  in  a  democracy  the  electorate  is  the 
legal  sovereign  only  when  it  directly  exercises  the  powers 
of  the  legal  sovereign.  In  the  national  system  of  the 
United  States  of  America,  e.  g.,  the  electorate  is  not 
legally  sovereign,  for  the  constitution  vests  the  power 
of  amendment  in  the  national  congress  and  the  legisla- 
tures of  the  commonwealths.  The  electorate  may  re- 
quest these  to  pass  amendments,  but  has  no  power  to 
command  them  so  to  do.  Theoretically,  these  lawmak- 
ing bodies  might  at  their  discretion  change  the  republic 
into  an  empire  or  into  a  socialistic  form  of  government, 
without  consulting  at  all  the  wishes  of  the  electorate. 
The  same  illustration  might  apply  in  the  case  of  Great 
Britain.  The  legal  sovereign  is  the  king  in  parliament, 
and  action  taken  by  this  body  is  legally  final,  irre- 
spective of  the  wishes  of  the  electorate. 

In  a  study  of  the  practical  workings  of  government, 
one  may  see  that  an  autocrat  ruler  will  make  no  im- 
portant change  in  the  constitution  without  first  con- 
sulting his  advisoiy  officers;  that  the  will  of  the  king  in 
parliament  may  be  virtually  expressed  by  the  leadership 
of  a  dominant  political  party  in  the  house  of  commons; 
that  American  lawmaking  bodies  will  carefully  consult 

*  In  the  United  States  the  president,  for  example,  may  veto  acts 
of  congress,  but  he  has  no  veto  power  over  amendments  to  the 
constitution  passed  by  congress. 


LEGAL   SOVEREIGN  AND  THE   ELECTORATE     213 

popular  wishes  before  passing  constitutional  amend- 
ments; and  that  countless  other  restrictive  influences 
are  brought  to  bear  on  the  personnel  composing  the  legal 
sovereign.  Such  matters  of  practical  politics  must  be 
carefully  studied  before  one  can  fully  understand  the 
political  system  of  a  state,  but  after  all  there  is  a  wide 
difference  in  idea  between  the  legal  right  to  accomplish 
constitutional  changes,  and  the  sum  total  of  all  the 
factors  and  motives  that  may  enter  into  the  formulation 
of  such  changes. 

The  legal  sovereign  often  has  a  revolutionary  origin, 

and  may  frequently  undergo  changes  in  composition. 

For  instance,  the  legal  sovereign  in  the  Ameri- 

The  legal  .       '  ,       ,  .         . 

sovereign  cau  colouics  bcfore  1776  was  the  kmg  in  parlia- 
sometTmes  i^^^i^t.  ^  The  Declaration  of  Independence  and 
revoiu-        the  action  of  the  colonies  made  these  from 

the  American  standpoint,  free  and  independent 
states,  held  together  loosely  in  a  confederation.  These 
states  in  congress  assembled  agreed  to  adopt  a  con- 
stitution, pro\udcd  all  the  states  gave  their  consent. 
^Vhen  this  had  been  accomplished,  by  1781,  the  legal 
sovereign  of  the  confederation  was  the  several  states 
acting  formally  through  the  congress,  ^^^len  revision 
became  urgent,  the  Convention  of  1787,  knowing  the 
impossibility  of  securing  unanimous  consent  to  the  pro- 
posed constitution,  suggested  that  it  go  into  effect 
provided  nine  of  the  thirteen  states  gave  their  consent. 
The  adoption  of  this  suggestion  and  its  accomplishment 
amounted  virtually  to  a  peaceful  revolution  and  the 
establishment  of  a  new  legal  sovereign.     The  constitu- 

'  Or,  as  argued  by  some,  the  king  in  council. 


214  THE   DEVELOPMENT   OF  THE  STATE 

tion  adopted,  however,  provided  that  future  alterations 
should  be  made  by  the  joint  consent  of  congress  and  of 
the  legislatures  of  the  states,  or  of  conventions  especially 
called  for  that  purpose.^  This  constituted,  therefore, 
a  new  legal  sovereign,  so  that  at  the  present  time  no 
legal  amendment  or  revision  of  the  national  constitution 
is  possible,  except  by  the  joint  action  of  these  lawmaking 
bodies. 

In  the  several  commonwealths  of  the  United  States  of 
America  Rousseau's  theory  that  the  people  should 
The  con-  legally  be  secured  against  governmental  tyr- 
conven-^^  auuy  has  found  full  development.  The  early 
t'on.  practice  of  the  states  was  to  assume  that  the 

legislature  or  assembly  had  constituent  powers  also,  but 
this  ran  counter  to  the  rising  tide  of  democracy.  The 
importance  of  a  written  constitution  embodying  a  fun- 
damental law  superior  to  the  statutes  of  a  legislature, 
was  soon  recognized.  In  order  that  the  electorate  voic- 
ing popular  interests  might  more  completely  control 
this  law,  the  constitutional  convention  was  brought  into 
use  and  developed.  This  agency,  elected  directly  by 
the  voters  and  submitting  its  work  to  them  for  approval, 
has  proved  remarkably  efficacious  in  securing  popular 
rights.  The  effect  of  it  is,  that  whereas  in  the  national 
system  legal  sovereignty  inheres  in  the  lawmaking  bodies 
of  the  federal  government  and  the  states,  in  most  of  the 
commonwealths  themselves  the  fundamental  law  is  con- 
trolled by  the  electorate,  through  the  convention  and 
the  referendum.     In  consequence,  the  real  development 

'  By  a  vote  of  two  thirds  of  each  house  of  congress,  and  three 
fourths  of  the  states.    Article  V. 


LEGAL   SOVEREIGN  AND  THE   ELECTORATE     215 

of  American  democracy  should  be  studied,  not  so  much 
in  the  national  system  as  in  the  local  systems  of  the 
states,  which  illustrate  much  more  clearly  the  virtues 
and  defects  of  a  popular  democracy. 

The  Electorate 

In  primitive  horde  life  there  was  a  sort  of  rude  de- 
mocracy.   Though  control  was  practically  in  the  hands 

of  the  elders,  yet  these  did  not  form  an  heredi- 
opmenf'     ^^^^    class.    Each   had   attained   the   honor 

through  merit  or  the  wisdom  of  age.  Every 
young  man,  so  to  speak,  had  in  possibility  a  "  marshal's 
baton"  in  his  grasp.  The  same  idea  holds  in  the  tribal 
democracy  of  pastoral  life.  A  nomadic,  warring  stage 
of  existence  is  not  suited  to  hereditary  aristocratic 
government.  Power  goes  to  the  one  who  best  can  wield 
it.  In  patriarchal  agricultural  life  the  situation  was  some- 
what different.  Class  distinctions  based  on  birth  and 
wealth  had  developed.  Hence  arose  a  leisure  class 
trained  in  a  more  generous  environment  than  that  of  the 
common  man.  They  were  keener  and  more  intelligent, 
and  were  dominating  in  personality.  Power  naturally 
belonged  to  them.  Yet  after  all  they  were  in  close 
touch  with  the  freemen  of  the  community.  All  were 
akin  and  trod  the  routine  of  life  together;  hence  the 
leaders  truly  represented  the  ideas  and  interests  of  the 
entire  community  as  well  as  though  they  had  been 
elected  representatives.  But  when  the  era  of  commerce 
began,  and  the  population  of  the  community  multiplied 
through  the  influx  of  aliens  and  merchants,  the  hereditary 
heads  of  the  community  would  not  adequately  represent 


216  THE   DEVELOPMENT   OF   THE   STATE 

the  differing  interests  of  the  growing  city  or  city  state. 
Hence  a  demand  for  representation,  not  of  persons  as  in 
modern  democracy,  but  of  interests  and  locahties.  Such 
demands  and  their  satisfaction  are  ilhistrated  by  the 
reform  legislation  of  Solon  and  of  Servius  Tullius,  who 
arranged  that  wealth  and  occupation  should  have  a  share 
in  governmental  power.  The  culmination  of  this  move- 
ment in  classic  times  is  best  known  through  the  struggle 
of  the  plebeians  against  the  patricians  in  Rome,  which 
finally  resulted  in  the  bestowal  on  every  citizen  of  a 
voice,  however  slight,  in  the  affairs  of  government.  This 
voice  was  expressed  by  formal  vote  cast  on  stated  days.  ^ 
When  citizens,  as  such,  meet  in  a  formal  way,  and  at 
a  set  time,  and  in  a  definite  place  and  manner,  express 
their  choice  by  vote  for  representatives  or  for 
governmental  measures,  they  form  in  effect  an 
electorate,  which  term  may  be  defined  as  that  body  of 
citizens  legally  authorized  to  participate  in  the  exercise 
of  some  of  the  sovereign  powers  of  the  state.  Feudalism 
and  medievalism  minimized  the  necessity  for  this  demo- 
cratic device,  except  in  the  commercial  centers  of  Italy 
and  Germany,  but  with  the  fifteenth  and  sixteenth  cen- 
turies the  rising  tide  of  democracy  once  again  brought 
the  notion  of  an  electorate  to  the  front.  Its  philosophic 
expression  was  in  the  famous  social  contract  theory. 
In  religion  it  voiced  itself  in  the  teaching  that  before  God 
all  men  are  equal  and  responsible.  Its  economic  equiva- 
lent was  voiced  by  Adam  Smith  in  free  competition  and 
laissez-jaire. 

'  For  an  excellent  brief  study  of  these  movements,  see  1'  The 
State,"  by  Woodrow  Wilson,  pp.  64-120. 


LEGAL   SOVEREIGN   AND  THE   ELECTORATE     217 

In  England  a  national  electorate  formally  came  into 
existence  when  municipal  corporations  and  county  or 
shire  courts  were  authorized  to  send  delegates 
suft-age.  '^^^  should  assist  the  council  in  advising  the 
king.  The  membership  of  these  corporate 
bodies  was  small  and  not  truly  representative  at  first, 
but  as  their  delegates  gained  power  in  parliament  there 
came  a  gradual  enlargement  of  the  elective  franchise, 
until  at  the  present  time  about  one  person  in  six  has  the 
suffrage,  which  is  practically  manhood  suffrage.  This 
enlargement  took  place  chiefly  by  reducing  the  property 
qualification  necessary  for  suffrage  and  by  removing 
disabilities  based  on  racial  and  religious  distinctions. 
Wherever  there  develops  a  virtual  equality  of  economic 
opportunity  and  conditions,  emphasis  tends  to  be  placed 
on  human  equality.  Hence  manhood  suffrage  came 
much  earlier  in  countries  under  the  influence  of  Ameri- 
can and  French  democratic  ideas,  and  the  more  radical 
democratic  world  has  even  admitted  women  to  the  same 
suffrage  privileges  as  men,  as,  for  instance,  in  six  of  the 
commonwealths  ^  of  the  United  States  of  America  and 
in  most  of  Australasia.  When  both  sexes  exercise  the 
suffrage  the  terms  adult,  or  general,  suffrage  are  used.  2 

It  is  important  to  note  that  wherever  an  electorate 
exists  it  becomes  ipso  facto  as  truly  a  part  of  the  govern- 
ment as  any  other  department  exercising  political 
powers.  The  powers  which  an  electorate  may  exert 
vary  considerably  in  extent  in  different  states,  but  the 

1  Colorado,  Idaho,  Wyoming,  Utah,  Washington  and  California. 
'  The  term  universal  is  often  incorrectly  used  for  either  manhood, 
or  for  adult  suffrage. 


218  THE   DEVELOPMENT   OF   THE   STATE 

tendency  in  democracies  is  to  bestow  increasingly  larger 
powers,  as  citizens  attain  greater  intelligence  and  politi- 
The  eiec-  ^^^  Capacity.  The  powers  usually  assigned  are 
toratea       executivc.     That    is,    the  electorate    may   be 

govern-  i        •        i  •  t  i  •       i 

mental  authorizcd  to  appomt  candidates  to  certain  des- 
agency.  ignated  offices  through  forms  of  election.  These 
offices  may  be  (1)  executive  or  administrative,  as  in  the 
election  of  a  president,  a  governor,  a  mayor  or  the  head 
of  an  administrative  department;  or  (2)  judicial,  as  in  the 
case  of  judges  elected  by  popular  vote,  the  prevailing 
system  in  the  commonwealths  of  the  United  States  of 
America;  or  (3)  legislative,  as  in  the  election  of  delegates 
to  lawmaking  bodies.  Occasionally  the  electorate  is 
authorized  to  aid  directly  in  legislation  through  the 
initiative  and  the  referendum.  At  times,  also,  the  elec- 
torate secures  the  right  to  assist,  through  delegates  chosen 
by  lot,  in  judicial  decisions  by  the  performance  of  jury 
service.  These  are  direct  powers  and  are  important  in 
proportion  to  their  extent.  .  If,  e.  g.,  an  electorate  should 
directly  appoint  by  election  all  important  officers  of  the 
three  historic  departments  of  government,  and  should 
have  a  deciding  voice  in  the  formulation  of  the  constitu- 
tion, its  power  would  be  enormous.  If,  also,  the  elec- 
torate were  composed  of  all  adults  in  the  nation,  the 
people  might  well  be  said  to  be  exercising  full  sovereign 
powers. 

Electorates,  however,  rarely  have  so  much  power  as- 
signed to  them  and  seldom  include  all  capable  adult 
persons.  Theories  of  social  welfare  may  result  in  mod- 
ifications of  the  principle  of  manhood  suffrage  by  intro- 
ducing restrictions  intended  to  discriminate  in  favor  of 


LEGAL   SOVEREIGN   AND  THE   ELECTORATE     219 

the  more  intelligent  and  reputable  classes.  Such  discrim- 
inations may  be  made  by  requiring  a  minimum  standard 
Restrictions  ^^  cducation  or  intelligence,  by  emphasis  on 
on  the         economic  capacity  as  shown  by  the  possession 

powers  of  „  ,  ,  ,  •         e  i 

elector-  01  taxable  property  or  the  pursuit  oi  an  honor- 
***^'  able  occupation,  by  disfranchisement  of  the 

pauperized  and  the  criminal  part  of  the  popidation  and 
by  restrictions  based  on  sex,  religion  or  service  in  certain 
branches  of  governmental  administration.  In  some 
states  special  suffrage  privileges  are  given  to  graduates 
of  universities,  to  married  men  and  to  fathers  of  families. ^ 
In  aristocracies  there  may  be  an  electorate  composed  of 
a  small  class  of  nobles  or  of  persons  of  wealth.  In  any 
so-called  democracy  it  is  always  important  to  note  (1) 
the  restrictions  on  suffrage,  and  (2)  the  direct  powers 
placed  in  the  hands  of  the  electorate.  The  restrictions 
may  be  so  great  and  the  power  so  slight  that  the  system 
is  really  a  close  oligarchy,  as  is  the  case  in  practically  all 
of  the  states  in  Latin  America. 

The  most  ancient  method  for  the  formulation  of  a  de- 
cision through  suffrage  is  that  known  to-day  as  viva 

voce.  A  question  is  submitted  to  the  assem- 
Methods  of    i^j^g^  voters  for  their  approval  or  rejection,  and 

by  word  of  mouth,  show  of  hands  or  other  sign 
they  signify  their  decision.  Ancient  familiar  examples 
of  this  may  be  found  in  Hebraic  history,  the  Homeric 
Ecclesia  and  the  Germanic  Assembly  of  Tacitus.  Mod- 
ern examples  are  seen  in  the  town  meeting  and  in  ordi- 

'  As  types  of  these,  note  suffrage  provisions  in  the  constitution  of 
Belgium,  Article  48,  and  of  Mexico,  Article  34.  Dodd,  .'Modern 
Constitutions." 


220  THE   DEVELOPMENT   OF   THE   STATE 

nary  social  organizations.  The  present  usual  form  of 
suffrage  is  through  the  secret  ballot.  This  device  was 
regularly  employed  by  the  Athenians  and  the  Romans, 
was  revived  in  the  period  of  the  Renaissance  and  is  now 
in  use  in  an  improved  form  in  practically  all  modern 
states.  The  Enghsh  baUot  act,  superseding  the  ancient 
method  of  election,  was  not  adopted  mitil  1872.  The 
improved  method  in  use  throughout  the  United  States 
of  America,  popularly  known  as  the  Australian  ballot 
system,  was  adopted  in  the  last  decade  of  the  nineteenth 
century. 

A  Newer  Democracy 

Underlying  the  great  political  movements  of  the  time 
there  is  manifestly  a  rising  tide  of  democracy,  not  repre- 
sentative in  type,  but  tending  always  toward  a  direct 
participation  of  the  electorate  in  the  formulation  of 
fundamental  policy.  Naturally  one  would  expect  imder 
such  conditions  a  vigorous  governmental  activity  in  re- 
spect to  general  welfare.  As  illustrations  of  both  of 
these  aspects  of  the  newer  democratic  spirit  the  growing 
use  of  the  initiative  and  the  referendum  will  be  noted, 
and  the  governmental  activities  of  the  Dominion  of  New 
Zealand,  where  apparently  the  Mecca  of  radical  democ- 
racy has  been  established. 

Historically  speaking,  the  initiation  of  projects  of 
policy  belongs  to  the  executive,  who  has  the  right  not 
simply  to  suggest,  but  to  order  a  policy.  Naturally  this 
power  is  shared  with  his  council,  and  in  practice  may 
pass  from  him  to  it.  With  the  rise  of  a  lawmaking  body 
a  new  problem  presents  itself  in  the  query  as  to  whether 


LEGAL   SOVEREIGN  AND  THE   ELECTORATE     221 

its  members  also  shall  be  allowed  the  privilege  of  initia- 
ting law.  The  English  solution  was  that  the  members 
Historical  of  the  newly  organized  parliament  offered  their 
develop-       suggestions  in  the  form  of  advice  or  as  a  pe- 

ment  of  the  ~^  ^  ^ 

modern  titiou.  In  Russia,  under  the  present  system, 
anVref-^  the  czar  reserves  the  right  to  initiate  all  funda- 
erendum.*  mentals,  but  permits  members  of  his  parliament 
to  initiate  matters  of  minor  consequence,  provided  these 
be  submitted  to  him  for  approval  or  rejection. 

Another  stage  of  development  is  noted  in  a  modern 
system  like  that  of  the  national  government  of  the 
United  States  of  America.  Under  this  system  the  presi- 
dent and  his  cabinet,  in  the  form  of  the  president's  mes- 
sage, suggest  to  the  lawmaking  body  a  policy  of  legis- 
lation, but  the  initiation  of  these  suggestions,  or  of  any 
other  suggestions  whatsoever,  is  optional  with  the  mem- 
bership of  the  congress.  "UTiatever  policy,  however,  this 
body  may  adopt,  as  testified  by  the  passing  of  bills,  must 
be  referred  to  the  executive  for  approval  or  disapproval, 
by  his  use  of  the  veto  power.  The  present  English  sys- 
tem, so  frequently  imitated  in  other  states,  lies  halfway 
between  this  and  the  earliest  system.  The  members  of 
the  king's  council,  the  cabinet,  are  at  the  same  time 
members  of  the  lawmaking  body,  and  are  both  legisla- 
tive leaders  and  authorized  royal  advisers.  As  leaders 
they  dominate  the  initiation  of  a  policy  to  be  passed  as 
legislation,  and  as  advisers  they  voice  the  king's  will;  so 

'  By  initiative  is  meant  the  right  of  the  electorate  to  propose  laws, 
and  to  demand  that  these  be  submitted  to  the  voters  for  approval 
or  rejection.  By  referendum  is  meant  the  right  of  the  electorate 
to  demand  that  legislation  passed  by  a  representative  body  be  sub- 
mitted to  the  voters  for  final  approval  or  rejection. 


222  THE   DEVELOPMENT   OF  THE  STATE 

that,  while  bills  are  formally  referred  to  him  for  ap- 
proval, consent  is  given  as  a  matter  of  course. 

The  next  step  of  development  is  especially  impor- 
tant and  needs  careful  consideration.  With  the  growth 
The  re  re-  ^^  dcmocracy  there  develops  an  electorate,  and 
sentative  the  question  arises  as  to  its  relationship  to  the 
lawmaking,  or  policy-fixing,  body.  If  this  is 
answered  by  authorizing  the  electorate  to  elect  the  mem- 
bers of  the  lawmaking  body,  then  a  system  of  repre- 
sentative government  is  established.  This  system  is 
strengthened  if  at  the  same  time  the  voters  may  deter- 
mine the  choice  of  the  head  of  the  state,  or  the  personnel 
of  his  cabinet.  Given  such  a  representative  system,  the 
problem  then  arises  as  to  the  best  methods  of  securing  a 
true  expression  of  the  will  of  the  electorate  through  its 
representatives.  It  will  be  impossible  to  trace  in  detail 
the  many  devices  to  this  end,  but  the  most  important  of 
these  may  at  least  be  mentioned. 

In  the  first  place,  devices  in  respect  to  elections  ^  de- 
velop one  by  one;  a  limit  is  placed  to  the  duration  of  the 
term  of  office,  and  careful  provisions  are  made  for 
nominations,  balloting  and  the  counting  of  votes.  There 
is  possibly  a  system  of  minority  or  proportional  repre- 
sentation, and,  in  general,  a  supervision  of  the  mechan- 
ism of  party  machinery.  Then  arises  the  question 
whether  representatives  may  be  instructed,  and  how,  if 
anyone  should  prove  recreant  to  his  trust,  he  may  be 
deprived  of  his  office  and  recalled  to  private  life.    Fol- 

*  For  discussion  and  numerous  references,  see  Bulletins  Nos.  3  and 
13,  Wisconsin  Legislative  Department,  "Corrupt  Practices  at  Elec- 
tions, and  Primary  Elections." 


LEGAL   SOVEREIGN   AND  THE   ELECTORATE     223 

lowing  closely  comes  the  notion  that  lawmakers  may  be 
instructed  by  placing  over  them  a  fundamental  law, 
formulated  by  a  special  body  in  close  touch  with  the 
electorate,  and  containing  essentially  a  policy  for  a 
generation  at  least.  Again,  the  electorate  may  assert 
its  right  to  suggest  by  'petition,  or  to  advise  by  public 
hearings,  what  in  its  opinion  should  be  the  policy  of  the 
state,  and  finally  may  assert  its  right  to  have  laws  re- 
ferred to  the  voters  for  their  approval  or  rejection,  and 
may  even  authorize  these  to  initiate  a  bill  or  a  consti- 
tutional amendment,  and  to  have  it  referred  to  the  law-  i 
making  body  or  to  the  voters  for  approval  or  disapproval. 

If  such  a  development  were  supplemented  by  a  similar 
growth  of  the  representative  character  of  the  electorate, 
as  voicing  the  wish  and  will  of  the  people,  by  removing, 
for  example,  distinctions  based  on  rank,  property  or 
sex,  a  condition  might  easily  be  reached  in  which  the 
electorate  would  be  practically  identified  with  the  people, 
barring  minors  and  incompetents,  and  would  be  legally 
exercising  the  fundamental  powers  of  the  state  by  its 
right  to  initiate  and  determine  the  policy  of  the  state. 
Evidently,  therefore,  a  state  in  working  out  its  govern- 
mental system  along  democratic  lines,  has  the  option  of 
seeking  to  build  up  either  a  truly  representative  system 
closely  in  touch  with  the  popular  will,  or  of  inclining 
more  and  more  toward  a  direct  democracy  by  the  use  of 
such  devices  as  the  initiative  and  the  referendum. ^ 

As  this  last  alternative  finds  its  storm  center  in 
Switzerland  and  in  the  United  States,  a  brief  statement 

'  For  references,  see  "  The  Initiative  and  Referendum,"  Bulletin 
No.  21,  Wisconsin  Reference  Department. 


224  THE   DEVELOPMENT   OF   THE   STATE 

in  regard  to  these  experiments  may  well  be  given. 
Remembering  that  the  early  Swiss  cantons  were  small 
^  .  rural  commmiities,  clannish  and  conservative 

Swiss  _    _  _      ' 

direct  by  disposition,  it  would  seem  natural  enough 

emocracy.   ^j^^^  ^j^^^  should   usc   the   direct   democratic 

system  of  the  village,  with  its  elders  as  a  council. 
But  when  administration  grew  in  importance  and  com- 
plexity there  slowly  developed  a  system  whereby  the 
initiation  of  a  policy  was  delegated  to  suitable  bodies, 
although  subject  to  popular  approval  on  reference.  In 
this  way  the  electorate  checked  or  balanced  the  power 
delegated  to  its  magistrates.  In  federal  affairs  the  con- 
stitution of  1848  gave  formal  voice  to  this  system,  and 
its  later  amendments  have  made  still  more  emphatic 
popular  control  over  fundamental  and  statutory  law. 
Under  the  present  constitution  there  is  an  optional 
referendum  in  respect  to  statutes  passed  by  the  Federal 
Assembly  and  a  compulsory  referendum  in  amendments 
or  revisions  of  the  constitutions.  For  constitutional 
purposes  the  initiative  also  is  authorized  but  is  sparingly 
used.^  In  the  cantons  or  commonwealths,  likewise,  these 
provisions  have  gained  ground,  until  it  is  said  (1902), 
that  "All  the  cantons  possess  the  initiative,  either  in 
constitutional  or  legislative  matters,  or  both;  and  all, 
except  Freiburg,  some  form  either  compulsory  or  op- 
tional, or  both,  of  the  referendum."  ^ 

Opinions  differ  widely  in  respect  to  the  utility  of  the 
system,  even  among  the  Swiss  themselves.    To  some 

'  But  five  times  in  the  ten  years  following  its  adoption  in  1891 ; 
four  of  the  measures  initiated  were  rejected  at  the  polls. 

^Rejiort  A.  S.  Hardy  to  department  of  state.  '.'House  Docu- 
ments," vol.  i,  p.  991,  Fifty-seventh  Congress,  second  session. 


LEGAL   SOVEREIGN  AND  THE   ELECTORATE     225 

• 

it  means  the  rule  of  an  unreflecting  mob,  moved  by 
impulse  and  prejudice,  and  dominated  by  motives  of 
immediate  utility  or  expediency.  Others  argue  for  it  as 
a  great  device  for  popular  education  on  political  ques- 
tions, and  seek  to  show  that  in  result  the  voters  seem 
to  be  at  least  conservative  rather  than  radical,  erring 
occasionally  through  ignorance,  but  on  the  whole  mani- 
festing an  intuitive  common-sense  appreciation  of  ques- 
tions submitted,  if  these  are  not  too  technical  nor  too 
detailed. 

It  seems  obvious  that  the  experiment  is  being  tried 
under  most  favorable  conditions.  Switzerland  is  a 
neutralized  state,  its  people  are  thrifty  and  intelligent, 
and  in  close  touch  with  modern  civilization.  Certainly 
neither  the  federal  government  nor  the  cantons  show 
any  disposition  to  repeal  the  system,  and  it  is  probable 
that  with  experience  and  deepening  intelligence  that 
state  may  yet  devise  a  workable  system  of  direct  democ- 
racy cooperating  with  a  well-ordered,  representative  form 
of  government. 

In  the  federal  government  of  the  United  States  neither 
the  initiative  nor  the  referendum  is  in  use,  though  there 
jjijg^t  are  occasional  movements  looking  toward  the 
democ-        introduction  of  the  referendum  into  the  federal 

racy  in  the  ,  i  i         i        /.    n        • 

United  system.  In  the  commonwealths  the  followmg 
^****^'  classes  of  legislation  find  illustration:  (1)  In 
practically  all  of  them  the  referendum  is  used  in  purely 
local  matters,  usually  in  the  form  of  statutory  author- 
ization of  local  bodies  politic  to  decide  for  themselves, 
whether  or  not  some  local  bill,  or  a  local  application  of 
some  general  statute,  shall  go  into  effect.     In  the  same 


226  THE   DEVELOPMENT   OF  THE   STATE 

« 

manner  there  is  in  many  states  a  local  initiative  in  use, 
as,  for  example,  when  the  voters  of  a  locality  petition 
for  the  submission  of  the  question  of  license  or  no 
license.  (2)  Again,  in  many  cases  a  state  constitution 
may  authorize  its  legislature  to  refer  to  the  voters  of  the 
state  some  particular  kind  of  general  legislation,  such  as, 
for  example,  a  proposition  to  issue  a  bond  series,  or 
to  adopt  prohibition  or  woman  suffrage.  Such  general 
referendums,  to  be  constitutional,  must  be  authorized 
by  the  state  constitution.  (3)  Beginning  in  1898  with 
South  Dakota,  several  states  ^  by  constitution  have  au- 
thorized the  use  of  the  initiative  and  referendum  in 
general  state  legislation.  So  far  Oregon  has  made  the 
most  effective  use  of  this  device.  (4)  Starting  with 
Massachusetts  in  1779-1780,  new  or  revised  constitu- 
tions and  amendments  are  now  regularly  referred  to  the 
electorate  for  approval  or  rejection.  Delaware  alone 
of  all  the  states  does  not  submit  amendments,  and  some 
states,  especially  in  the  South,  promulgate  constitutions 
on  the  authority  of  the  convention,  according  to  the 
usual  custom  in  our  early  national  history.  Since  1890, 
e.  g.,  five  states  ^  have,  without  the  use  of  the  referendum, 
adopted  revised  constitutions.  (5)  The  most  radical 
change  of  this  sort  was  made  by  the  adoption  of  the 
initiative  in  amendments  to  the  constitution,  started 
by  Oregon  in  1902,  and  taken  up  by  Oklahoma,  in  its 
new  constitution,  1907,  and  by  Missouri  in  1908.  (6)  A 
legislature  may  authorize  a  referendum  so  as  to  obtain 

^  Among  these  the  most  complete  systems  are  fomid  in  Oregon, 
Oklahoma,  Missouri,  California  and  Arizona. 

'^  Mississippi,  South  Carolina,  Delaware,  Louisiana,  Virginia. 


LEGAL   SOVEREIGN   AND  THE   ELECTORATE     227 

from  the  electorate  advice  as  to  whether  or  not  a  pro- 
posed bill,  or  a  particular  candidate,  has  popular  ap- 
proval. This  is  a  form  of  instruction,  but  it  is  not 
legally  binding  on  the  legislature.  Party  primaries  may 
use  the  same  system  so  as  to  suggest  suitable  candidates 
for  office.  1 

In  this  connection  it  may  be  noted  that  the  purely 
local  use  of  the  initiative  and  referendum,  especially  the 
latter,  the  occasional  use  of  the  referendum  in  general 
legislation,  and  its  use  in  the  adoption,  revision  or  amend- 
ment of  state  constitutions  are  familiar,  long-tried  and 
well-established  methods  of  legislating  with  the  aid  of 
the  electorate.  The  general  use  of  the  mitiative  and 
referendum  in  statutory  legislation,  and  the  use  of  the 
initiative  in  amendments  to  the  constitution  are  new  to 
the  American  system,  obviously  borrowed  from  Switzer- 
land, and  are  still  on  trial  in  popular  estimation.  Few 
states  have  so  far  ventured  on  the  experiment,  and  these 
with  one  exception  are  west  of  the  Mississippi,  where  a 
more  radical  type  of  democracy  prevails  than  can  be 
found  farther  east.  The  advisory  referendum  is  new, 
and  may  develop  into  a  legalized  method  of  giving  in- 
structions to  delegates  or  representatives.  Evidently  no 
dogmatic  statement  in  respect  to  the  outcome  of  this 
tendency  toward  direct  democracy  can  safely  be  made 
at  present.  The  western  states,  with  fewer  precedents 
and  more  democratic  conditions,  can  experiment  with 
new  devices  in  governniental  machinery,  the  very 
thought  of  which  would  horrify  the  conservative  East. 

*  Illinois,  Texas,  Oregon  and  Massachusetts  among  others  have 
made  use  of  this  form  of  referendum. 


228  THE   DEVELOPMENT   OF   THE   STATE 

If,  however,  these  experiments  prove  useful,  they  will 
undoubtedly  be  taken  up  in  milder  forms  by  other 
commonwealths.  In  this  way  real  improvements  will 
slowly  work  into  the  governments  of  the  several  states 
and  ultimately  become  the  law  of  the  land.  It  may  be 
observed  that,  so  far  as  the  initiative  and  referendum 
are  concerned,  there  seem  to  be  no  backward  steps. 
Wherever  the  system  is  on  trial,  it  seems  to  be  gaining 
rather  than  losing  ground. 

New  Zealand  is  by  no  means  a  great  state,  nor  even  in 
itself  a  colony  ^  of  international  importance,  yet  within 
KewZea-  its  bordcrs  most  of  the  radical  experiments  in 
iToHdcai  democracy  thai  Utopians  have  dreamed  of  for 
laboratory,  geucratious  are  at  present  being  carried  on. 
This  group  of  islands  is  comparatively  small,  having  an 
area  about  that  of  Colorado  or  Nevada.  Its  population, 
all  told,  is  less  than  a  million,  not  so  many  as  may  be 
found  within  the  borders  of  Connecticut.  The  chief 
occupations  of  its  people  are  farming  and  grazing,  sup- 
plemented by  manufactures  and  mining.  It  has  its 
commerce  and  is  in  close  touch  with  its  neighbors  in  Aus- 
tralia, twelve  hundred  miles  away,  and  with  the  mother 
country,  which  by  the  prestige  of  its  flag  shields  its  off- 
spring from  many  international  complications  and  bur- 
dens. In  this  remote  corner  of  the  earth,  freed  from 
the  fear  of  \.ar.  with  natural  riches  and  a  population 
over  ninety-eight  per  cent  British  by  birth  or  descent, 
with  the  suffrage  in  the  hand  of  every  adult  man  or 
woman,  and  a  flexible  system  of  government,  virtually 
autonomous,  English  individualism  is  free  to  work  out 
'  It  is,  since  1907,  the  Dominion  of  New  Zealand. 


LEGAL   SOVEREIGN   AND  THE  ELECTORATE     229 

a  form  of  democratic  activity  which,  if  it  proves  success- 
ful, will  become  a  sort  of  ideal  to  which  other  democra- 
cies in  future  may  seek  to  attain. 

Without  commenting  on  the  success  or  failure  of  its 
numerous  experiments  in  legislation,  in  respect  to  which 
references  for  reading  will  be  found  at  the  end  of  this 
chapter,  attention  may  be  directed  to  what  may  be 
called  the  newer  democracy.  Adult  suffrage  is  allowed 
a  free  hand  by  careful  provisions  for  free  nominations, 
the  Australian  alphabetical  secret  ballot,  effective  cor- 
rupt practices  acts  and  a  half  holiday  for  workers  on 
election  day.  Civil  service  rules,  non-partisan  politics 
and  official  responsibility  help  toward  honest  adminis- 
tration. The  government  owns  its  railroads,  manufac- 
turing its  owTi  cars  and  locomotives;  it  owns  steamship 
lines,  telegraphs,  telephones,  coal  mines  and  savings 
banks,  a  parcels  post,  a  national  bank  and  a  loan  office 
which  lends  money  on  easy  terms  and  low  interest  to 
the  citizens.  It  plans  for  ultimate  state  ownership  of 
lands,  helped  on  by  a  lease  system  and  a  graduated  land 
tax.  There  is  a  government  insurance  company  com- 
peting with  private  insurance  companies  and  a  govern- 
mental management  of  trust  estates.  All  these  and 
other  similar  undertakings  illustrate  the  bewildering 
variety  of  activities  carried  on  by  the  state.  It  arbi- 
trates disputes  of  all  sorts,  guaranties  land  titles,  sim- 
plifies law,  furnishes  legal  advice  and  service  free  or  at 
low  rates,  serves  as  tourist  agent  for  travelers,  estab- 
lishes model  farms  and  teaches  scientific  farming.  It 
uses  the  probation  system  for  juveniles,  colonizes  its 
unemployed,  starting  them  in  business  as  farmers,  pro- 


230  THE   DEVELOPMENT   OF   THE   STATE 

vides  pensions  for  the  aged  and  is  seeking  to  abolish 
pauperism  altogether.  It  serves  as  selling  agent  for  its 
farmers,  keeps  their  goods  when  necessary  in  cold  stor- 
age and  sells  them  in  London,  charging  only  commission 
at  cost.  It  aims  to  establish  a  minimum  wage,  a  short- 
hour  day  and  guaranties  work  for  all  through  its  labor 
department.  It  has  eliminated  sweat  shops,  carefully 
regulates  the  labor  of  women  and  children  and  has  effi- 
cient sanitation  laws  for  manufacturing  establishments 
and  shops.  It  directly  employs  its  own  force  in  the 
construction  and  maintenance  of  public  works,  and 
stimulates  industry  on  the  part  of  its  workers  by  cooper- 
ative methods.  It  is  abolishing  the  slums  by  inducing 
urbanites  to  move  toward  the  outskirts  and  into  the 
country,  and  by  helping  workingmen  to  build  homes  by 
loans  at  low  interest.  Education  is  emphasized  and  is 
for  the  most  part  free.  There  is  no  state  church,  and  no 
state  aid  is  given  to  any  religious  body.  The  govern- 
ment seeks  definitely  to  equalize  opportunity  for  all,  to 
diffuse  wealth  and  to  discourage  the  rise  of  millionaire 
fortunes.  Its  ideal  is  a  land  of  plenty  without  pauper- 
ism or  excessive  luxury,  where  healthy  bodies  and  well- 
trained  minds  may  become  normal  and  furnish  the  basis 
for  continued  prosperity. 

Whether  this  experiment  in  democracy  will  succeed 
is  still  a  problem.  Certainly  the  economic  and  racial 
conditions  of  New  Zealand  are  favorable,  and  its  safety 
from  international  complication  seems  assured.  If  its 
government  plans  wisely  on  the  basis  of  a  carefully  pre- 
pared and  well-balanced  budget,  and  strengthens  in 
every  possible  way  the  morality  and  intelligence  of  its 


LEGAL   SOVEREIGN  AND   THE   ELECTORATE     231 

citizens,  there  seems  no  inherent  reason  why  it  may  not 
become  "Newest  England"  in  a  large  and  prophetic 
sense. 

After  a  survey  of  political  evolution  and  differentia- 
tion, he  would  have  a  difficult  task  who  should  try  to 
The  contri-  Gstimatc  witli  any  completeness  the  relative 
butions  of    contribution  of  the  world's  great  historic  states 

nations  to  ,..,..,.         .  . 

political  to  political  Civilization.  Yet  it  would  be  easy 
civilization,  g^ough  to  scc  that  in  India,  in  Egypt,  on  the 
plains  of  China  and  of  Mesopotamia  and  in  the  cities 
and  harbors  of  Asia  Minor,  there  developed  great  patri- 
archal and  commercial  empires  which  fixed  the  funda- 
mental type  of  state  for  civilized  man;  and  that,  not- 
w^ithstanding  the  rise  and  fall  of  dynasties  and  races, 
the  petty  states  of  early  Europe  inherited  from  the  East 
and  the  South  all  that  was  really  valuable  of  a  decadent 
civilization. 

In  Phoenicia,  the  most  modem  of  ancient  Asiatic 
governments,  and  in  Carthage  its  great  colony,  in  Greece 
and  in  Rome,  centered  the  contributions  of  preceding 
ages,  as  each,  one  after  the  other,  assumed  prominence 
and  made  its  own  offering  to  the  common  stock.  From 
the  first  three  came  that  emphasis  on  commerce  and 
colonization,  which  makes  a  modern  Englishman  feel 
perfectly  at  home  as  he  reads  of  the  expansion  policy  of 
these  nations;  Athens,  in  addition,  taught  philosophers 
how  to  reason  about  the  principles  of  government  and 
to  work  toward  higher  and  better  standards  of  political 
life.  The  genius  of  Rome  lay  by  contrast  in  its  emphasis 
on  law  and  administration.  By  the  aid  of  Greek  phi- 
losophy it  enlarged  its  customary  law  into  a  code  that 


232  THE   DEVELOPMENT   OF  THE   STATE 

will  stand  for  many  future  centuries,  as  the  high-water 
mark  of  attainment  in  respect  to  civil  rights.  By  its 
administrative  and  centralizing  capacity  it  developed  a 
system  of  political  organization  that  finds  its  best  ex- 
pression to-day  in  the  imperialistic  hierarchy  of  the 
Roman  Catholic  church,  and  in  the  highly  centralized 
governmental  organization  of  France.  From  England  in 
later  centuries  came  an  efficient  judicial  system,  a  suc- 
cessful colonial  policy  and  a  parliament  working  out 
through  a  joint  cabinet  an  harmonious  cooperation 
of  governmental  and  civic  interests.  France,  a  true 
daughter  of  the  Roman  empire,  as  shown  by  its  capacity 
in  war,  in  law  and  in  administration,  came  to  the  front 
in  the  eighteenth  century,  set  fire  to  the  dry  tinder  of 
European  politics  and  intoxicated  the  political  world 
with  the  inspiration  derived  from  the  "Marseillaise,"  the 
pursuit  of  glory,  and  the  ideals  of  democracy  contained 
in  the  motto,  Liberty,  Equality  and  Fraternity.  This 
influence  spread  through  western  and  southern  Europe, 
passed  to  the  Latin  colonies  in  South  America,  rivalmg 
there  the  competing  influences  of  Spain  and  the  United 
States,  and  even  affected  in  the  latter  country  the  policies 
of  such  democratic  leaders  as  Jefferson  and  Monroe. 
Germany  and  Japan  are  adding  their  contributions  to 
the  world-state  in  the  form  of  applications  of  scientific 
principles  to  governmental  functions  and  organization, 
thereby  overcoming  natural  handicaps.  The  United 
States  also  is  no  mean  factor  in  the  modern  political 
world.  From  it  has  come  the  federation,  the  written 
constitution,  a  humanitarianism  cosmopolitan  in  its 
scope  and  a  wide  application  of  the  principles  of  democ- 


LEGAL   SOVEREIGN  AND  THE   ELECTORATE      233 

racy.  This  development  has  been  greatly  aided  by  its 
freedom  from  military  necessities,  its  system  of  general 
education  and  the  inventive  capacity  of  its  people,  de- 
voted to  the  development  of  a  large,  well-watered,  fertile 
land  rich  in  fuels  and  minerals.  Through  these  the 
nation,  with  its  composite  racial  population,  is  deeply 
impressing  its  governmental  type  on  the  political  sys- 
tems of  the  world,  and  has  by  no  means  yet  reached  the 
height  of  its  powers.  ^  Add  to  all  these  the  many  ex- 
periments being  made  in  odd  corners  of  the  earth,  such 
as  in  Australasia,  Finland,  Scandinavia  and  Switzer- 
land, and  the  conviction  might  readily  grow  that  the 
state,  in  its  governmental  functioning  and  organization, 
is  still  plastic,  is  still  adapting  itself  to  newer  conditions 
and  by  steady  improvement  is  becoming  unquestionably 
the  great  agency  through  which  humanity  will  continue 
to  accomplish  its  ends  of  social  development. 

From  this  discussion  of  the  organization  of  the  state, 
it  seems   clear   that   the   present  trend  of  government 

in  the  progressive  part  of  western  civilization 
citizenship.    ^^  toward  dcmocracy,  and,  therefore,  toward  an 

increasing  emphasis  on  law  and  on  the  rights 
and  obligations  of  citizenship.  A  brief  exposition  of 
each  of  these  subjects  will  make  more  evident  the  spirit, 
and  the  conditions  essential  to  the  development  of  an 
intelligent  democracy. 

'  Note,  e.  g.,  "  The  Americanization  of  the  World,"  1901,  W,  T. 
Stead. 


234  THE   DEVELOPMENT  OF  THE   STATE 


SPECIAL  REFERENCES 

Legal  Sovereign:  General  works  (Chapter  III)  under  topics; 
"Sovereignty  "  and  "  Location  of  Sovereignty." 

Constitution:  References  Chapter  XII. 

Electorate:  References  Chapters  XIII-XV. 

Ballot:  American  Historical  Review,  vol.  v,  p.  3,  A.  M. 
WoLFSON,  "The  Ballot  and  Other  Forms  of  Voting  in  the 
Italian  Communes";  Papers  of  American  Historical  Asso- 
ciaiion,  vol.  v,  pp.  163-186,  Douglas  Campbell,  "Origin 
of  American  Institutions,  as  Illustrated  in  the  History  of 
the  Written  Ballot." 

New  Zealand:  H.  D.  Lloyd,  "Newest  England,"  1901;  Frank 
Parsons,  "The  Story  of  New  Zealand,"  1904,  Philadelphia. 

Miscellaneous:  F.  A.  Dallinger,  "Nominations  for  Elective 
Office,"  1897;  Carl  R.  Fish,  "Civil  Service  and  the  Patron- 
age," 1905;  J.  R.  Commons,  "Proportional  Representation," 
1907;  C.  E.  Merriam,  "Primary  Elections,"  1908. 


PART  FOUR 

LAW  AND  CITIZENSHIP 


CHAPTER  XI 

CLASSIFICATION    OF    LAW 

In  any  community  there  will  develop  set  and  custom- 
ary ways  of  carrying  on  social  activities.    Persons  soon 
realize  that  time  is  saved  and  friction  avoided 

The 

meaning  by  Conforming  their  actions  to  social  standards 
and  routine.  Such  customs  develop  in  all 
ages  and  in  all  kinds  of  social  life,  whether  economic, 
domestic  or  religious.  They  form  a  sort  of  unwritten 
code,  enforced  by  parental  and  ecclesiastical  authority 
or  by  the  pressure  of  public  opinion.  Some  of  these 
customs,  however,  may  become  so  important  for  general 
welfare  that  stronger  pressure  than  social  authority  or 
opinion  must  be  brought  to  bear  on  those  members  of 
the  community  who  incline  to  acts  in  violation  of  social 
standards.  Whenever  a  community  in  its  collective 
capacity,  presumably  acting  through  its  body  of  elders, 
its  government,  undertakes  to  apply  such  pressure,  by 
fixing  penalty  for  violation,  then  such  customs  cease  to 
be  purely  social  and  become  political.  In  other  words 
they  become  the  lain  of  the  land.  They  are  virtually 
commands,  ordering  or  prohibiting  certain  actions,  and 
disobedience  is  followed  by  the  infliction  of  a  penalty 
fixed  by  the  governing  body  of  the  community.  As  the 
sphere  of  governmental  activity  widens,  other  social  cus- 

237 


238  THE   DEVELOPMENT  OF  THE   STATE 

toms  become  of  general  importance,  enforceable  under 
penalty  by  the  state.  Throughout  the  entire  history 
of  the  state,  laws  have  developed  in  this  manner  from 
customs.  These,  arising  from  social  intercourse,  are 
at  first  largely  personal  and  local;  some  in  process 
of  time  develop  general  importance,  and  when  really 
essential,  are  enforced  through  government  for  the  sake 
of  the  general  welfare.  Law,  therefore,  may  be  defined 
as  the  formulated  will  of  the  state,  enforced  by  the 
sovereign  power  of  the  state.  This  will  may  be  formu- 
lated in  customs  having  a  legal  sanction,  or  in  com- 
mands written  or  unwritten. 

If  all  law  were  purely  social  custom,  violations  would 

be  few  and  punishment  rare;  but  other  sources  have 

, .     contributed  to  the  multiplication  of  laws  and 

The  multi-  '■_ 

plication  of  these  have  greatly  complicated  the  legal  sys- 
^^^'  tem.    Broadly   speaking,  there  are  four  such 

causes:  In  the  first  place,  civilization  has  been  marked 
by  a  constant  series  of  wars,  conquests  and  amalgama- 
tions of  races.  Conquerors  and  conquered  settle  down  in 
the  same  community;  their  differing  customs  clash  and 
compel  ultimate  compromise,  but  meanwhile  the  domi- 
nant race  enforces  what  seems  to  the  conquered  a  harsh 
and  arbitrary  law  which  they  hate  and  violate  whenever 
possible.  Again,  the  origin  of  private  property  multi- 
plied enormously  the  possibilities  of  disobedience  to  law. 
Social  philosophers  have  tended  to  decry  private  prop- 
erty as  the  root  of  all  evil;  Plato  in  his  "  Republic  "  and 
Sir  Thomas  More,  in  his  "  Utopia,"  for  instance,  charge 
to  its  existence  nearly  all  the  evils  of  social  life.  It  is  cer- 
tainly hard  to  find  a  sound  ethical  basis  for  the  ex- 


CLASSIFICATION  OF   LAW  239 

tremes  of  wealth — excessive  riches  and  abject  poverty. 
Many  persons,  therefore,  have  always  found  it  easy  to 
justify  to  themselves  theft  and  robbery.  This  is  as  true 
to-day  as  it  ever  was.  The  largest  part  of  criminal  law  is 
aimed  at  such  crimes,  and  much  social  friction  arises  in 
consequence.  In  the  third  place,  society,  through  the 
institution  of  private  property,  has  regularly  tended  to 
develop  classes,  superior  and  inferior,  governing  and 
governed.  The  class  in  possession  of  governmental 
power  naturally  arranges  the  social  and  economic  system 
chiefly  to  suit  its  own  interests,  and  seeks  to  compel 
obedience  to  its  mandates  even  by  harsh  measures  if 
necessary.  Class  legislation,  therefore,  giving  special 
privileges  to  a  favored  part  of  the  community,  is  obnox- 
ious to  the  others,  who  violate  its  injunctions  without 
compunction  whenever  possible.  Lastly,  legislation  by 
lawmaking  bodies  has  not  always  been  wise  and  judi- 
cious. It  may  be  too  paternal,  may  interfere  too  much 
with  personal  comforts  and  rights,  and  may  irritate  by 
petty  exactions  and  overofRciousness. 

To  the  governed,  an  aggravation  of  the  legal  system 
lay  in  the  fact  that  for  long  periods  a  knowledge  of  the 
law  and  of  its  procedure  was  considered  to  be  a  privilege 
of  the  ruling  class,  who  thereby  were  able  to  hold  hidden 
terrors  over  their  unwilling  subjects.  The  history  of  the 
ten  tables  of  Roman  law  illustrates  this  point.  The 
injustice  of  inflicting  penalty  under  such  conditions  is 
obvious.  Ignorance  of  the  law  excuses  no  one,  to  be 
sure,  but  if  ignorance  is  compulsory  we  feel  that  it  should 
excuse.  For  this  reason  civilized  communities  have 
regularly  demanded  that  enforceable  law  be  proclaimed. 


240  THE   DEVELOPMENT   OF   THE   STATE 

The  demand  "That  every  man  may  know  the  law"^ 
has  been  satisfied  in  most  modern  states,  even  though 
the  complexity  of  civic  Mfe  is  such  that  few  men  can 
understand  it  when  announced.  A  favorite  dream  of 
social  Utopians  has  been  that  law  be  made  so  simple  that 
even  the  unlearned  man  may  understand.  -  That  re- 
form is  still  for  the  future. 

The  customs  that  first  passed  into  law  were  probably 
those  concerned  with  crime  against  the  community  as  a 

whole,  the  beginnings  of  modern  treason  laws. 
ueasoiT  °^    ^  ^^^^  against  treason  is  primarily  based  on  the 

notion  of  service  owed  to  a  community  by  its 
members,  or  on  the  allegiance  due  from  a  subject  to  a 
ruler.  Law  against  treason  in  some  form  or  other  is 
found  even  in  crude  and  primitive  communities.  Severe 
penalty  was  inflicted  on  those  who  failed  in  military 
service  or  obedience,  or  who  conspired  against  the  com- 
munity or  its  head.  As  kingship  developed,  treason  be- 
came personal.  It  was  a  crime  against  the  head  as  the 
embodiment  of  the  state.  When  kingship  was  hedged 
about  with  notions  of  divinity,  it  became  not  simply 
traitorous  but  impious  to  lay  hands  on  the  "Lord's 
anointed,"  and  spiritual  as  well  as  temporal  punishment 
was  meted  out  to  the  offender.  Torture,  confiscation  of 
property,  corruption  of  blood  and  ecclesiastical  censures 
were  rigorously  inflicted  on  malcontents.  The  idea  of 
treason  was  extended  so  as  to  protect  members  of  the 
king's  family  or  his  chief  officers,  and  so  as  to  include 

'Note  for  example,  explanation  in  Jenks,  "Law  and  Politics," 
pp.  10-11. 

^'See  for  illustrations  More's  "Utopia,"  p.  135,  Morley  edition, 
and  Gardiner's  "Constitutional  Documents,"  p.  240,  Section  6. 


CLASSIFICATION   OF   LAW  241 

even  words  or  criticism  that  might  seem  to  imply  hos- 
tihty  to  the  king  and  his  government.  ^ 

In  modern  states,  as  autocracy  and  the  divinity  of 
kingship  become  obsolete,  treason  consists  in  action 
against  the  state  as  well  as  against  the  king.  Punish- 
ment of  the  latter  class  of  offenses  becomes  more  humane 
as  kings  lose  their  importance  in  the  political  system. 
In  republics  treason  against  the  head  of  the  state  or  his 
officers  is  no  longer  recognized  as  a  special  crime;  offenses 
of  that  sort  are  treated  under  ordinary  criminal  law. 
Treason  now  is  a  crime  only  when  directed  against  the 
state.  Furthermore,  as  freedom  of  speech  is  essential 
to  democracies,  the  tendency  is  to  consider  as  treason 
only  armed  rebellion  and  not  criticism  of  the  state  or  its 
officials.  These  several  varieties  of  treason  laws  can 
easily  be  illustrated  by  comparing  the  systems  in  states 
differing  in  political  development,  such  as  China,  Russia, 
Germany,  Great  Britain  and  the  United  States  of 
America. 

As  already  mentioned,  acts  of  violence  and  theft  were 
long  considered  to  be  private  matters,  of  no  concern  to 
^  .  .    .      the  state,  and  were  settled  in  accord  with  the 

Criminal  ' 

and  civil  social  customs  of  the  Community.  Regulation, 
therefore,  was  social,  domestic,  religious  but 
not  civil.  As  the  state  began  to  enlarge  its  importance 
and  to  regulate  all  disputes  that  tended  to  disturb  the 
peace  of  the  community,  necessarily  it  had  to  adopt  a 
code  of  law  as  the  basal  principles  for  decisions.  The 
customs  of  the  community  based  on  primitive  customs 

•  See,  for  example,  Feilden's  "Constitutional  History,"  pp.  3-7. 
^  See  Chap,  iv,  pages  80-87. 


242  THE  DEVELOPMENT  OF  THE  STATE 

and  prohibitions  (the  tabu)  supplied  such  a  code,  sub- 
ject to  such  modifications  as  from  time  to  time  became 
necessary.  In  this  way  developed  ordinary  criminal 
law,  which  names  the  various  prohibitions  enforced  by 
the  state,  and  specifies  the  penalties  to  be  inflicted  in 
case  of  violation  of  the  law.  ^ 

In  the  same  manner  developed  rules  and  regulations 
in  regard  to  property  rights.  When  property  became 
private,  not  communal,  regulation  of  rights  became  in- 
creasingly important.  Disputes  in  regard  to  ownership 
often  led  to  violence,  and  in  its  function  as  the  guar- 
antor of  peace,  the  state  had  to  assume  an  increasingly 
larger  share  in  the  settlement  of  disputes  in  regard  to 
property  rights.  This  jurisdiction,  however,  is  not  so 
marked  as  that  exercised  in  criminal  matters.  In  case 
of  crime  the  state  assumes  charge  of  the  matter  and 
treats  the  offense  as  one  committed  against  the  entire 
community.  The  state  prosecutes,  not  the  injured  per- 
son, and  the  state  bears  the  expense  of  investigation  and 
inflicts  the  penalty.  A  civil  dispute,  on  the  other  hand, 
is  in  form  private.  It  is  a  dispute  between  individuals, 
who  voluntarily  bring  their  contention  before  the  state 
as  an  umpire,  which  will  decide  in  accord  with  well-es- 
tablished law,  and  enforce  its  decision  at  the  expense  of 
the  parties  concerned. 

An  important  historic  form  of  law  is  the  decree  or 
ordinance.  This  is  supplementary  to  the  law  of  the 
land  and  is  formulated  through  the  executive  and  the 
departments  of  administration.     If  in  a  state  there  is  no 

'  See  article  Popular  Science  Monthly,  vol.  xvi,  p.  438,  by  W.  W. 
Billson,  "  The  Origin  of  Criminal  Law." 


CLASSIFICATION  OF  LAW  243 

lawmaking  body,  the  power  of  the  executive  to  issue 
decrees  or  ordinances  is  most  important,  supplying  as  it 

does  the  place  of  the  legislature.  In  statutory 
wdhiance.     legislation  no  law  can  fully  cover  all  possible 

details,  and  hence  there  regularly  rests  in  the 
administration  the  power  to  make  supplementary  rules 
and  regulations  for  the  guidance  of  the  several  adminis- 
trative departments.  These  rules  are  readily  changed 
or  modified  to  suit  conditions.  They  are  the  hy-laws  of 
social  organizations.  The  ordinance  power  of  adminis- 
trative departments  is  always  large,  but  is  especially 
emphasized  in  states  not  of  the  Anglo-American  type.^ 
Legislation  in  those  countries  is  expressed  in  a  concise 
and  terse  manner,  and  its  details  are  left  to  be  worked 
out  by  the  administration  under  the  guidance  of  the 
executive.  This  naturally  enlarges  greatly  the  impor- 
tance of  administrative  departments.  In  Anglo-Ameri- 
can countries,  on  the  other  hand,  legislation  is  detailed 
and  verbose  to  the  last  degree,  in  that  the  legislature  seeks 
to  anticipate  every  possible  emergency.  The  ordinance 
power  of  the  administration  is  correspondingly  reduced. 
Such  ordinances  of  administrative  bodies  are  related  to 
administrative  law  proper  as  statutes  are  to  the  consti- 
tution. They  elaborate  the  fundamentals  of  the  higher 
law  and  supplement  it.  City  councils  being  practically 
administrative  bodies  issue  their  decisions  as  ordinances, 
and  as  cities  are  known  as  municipalities,  these  ordi- 
nances are  frequently  referred  to  as  municipal  ordinances. 

*  For  a  thorough  comparative  study  of  administrative  systems 
in  Europe,  see  Goodnow's  "Comparative  Administrative  Law," 
vol.  i,  "Organization,"  vol.  ii,  "Legal  Relations." 


244  THE   DEVELOPMENT  OF  THE   STATE 

Differentiation  in  government  has  resulted  in  a  cor- 
responding differentiation  in  law.  The  fundamental 
....        law  of  the  land,  or  law  of  the  constitution,  is 

Admims-  '  _  _      _ 

trative         the  basis  for  all  law,  but  derived  from  this  is 
'^'  the  ordinary  law  of  the  land,  the  civil  law, 

which  applies  to  all  citizens  or  quasi-citizens  in  their 
civic  capacity.  Side  by  side  with  this  is  the  law  regu- 
latmg  those  who  serve  in  the  army  and  navy.  It  is  a 
form  of  administrative  law  and  applies  ordinarily  to 
those  only  who  are  actively  engaged  in  military  and 
naval  services.  Yet  in  times  of  war  or  insurrection,  the 
provisions  of  the  civil  law  may  be  suspended  as  far  as  is 
necessary,  and  the  more  expeditious  rules  of  war  em- 
ployed so  as  to  secure  the  peace  and  safety  of  the  state. 
The  method  by  which  this  may  be  done  is  part  of  con- 
stitutional law.  The  state,  besides  employing  the 
services  of  those  in  the  army  and  navy,  has  many  per- 
sons engaged  in  the  ordinary  administration  of  govern- 
mental affairs.  These  unitedly  make  up  the  civil  service, 
as  distinguished  from  the  military  and  naval  service. 
The  rules  and  regulations  governing  the  organization  and 
powers  of  the  civil  service  form  the  administrative  law. 
This  division  of  law  is  a  formal  one  in  English- American 
systems,  but  has  attained  a  much  higher  development 
in  the  states  of  continental  Europe.  In  France,  for 
instance,  where  this  law  has  reached  its  fullest  develop- 
ment, there  is  a  special  series  of  administrative  courts, 
independent  of  the  civil  courts,  having  jurisdiction 
broadly  of  all  cases  involving  acts  of  officials  of  the  civil 
service,  and  cases  arising  under  administrative  law. 
The  argument  in  favor  of  such  a  system  is  that  it  insures 


CLASSIFICATION   OF   LAW  245 

a  more  scientific,  expeditious  and  impartial  decision  than 
would  result  if  the  case  were  intrusted  to  the  ordinary 
courts.^  In  the  English-American  system  there  are 
special  courts  for  the  consideration  of  administrative 
disputes,  but  their  decisions  are  subject  to  revision  by 
the  civil  courts,  which  also  have  jurisdiction  over  civil 
officers.  These  courts  make  no  distinction  between  ad- 
ministrative and  civil  law.^ 

It  has  already  been  said  that  every  state  has  a  body 
of  fundamental  law  known   as  its  constitution.     This 

term  may  then  be  defined  as  that  fundamental 
tioniria'w    ^^^^  ^^  body  of  laws,  written  or  unwritten,  in 

which  may  be  found  (a)  the  form  of  the  organ- 
ization of  the  state,  (6)  the  extent  of  power  intrusted  to 
the  various  agencies  of  the  state  and  (c)  the  manner  in 
which  these  powers  are  to  be  exercised.  Utopian  con- 
stitutions may  be  worked  out  by  social  philosophers  as 
ideals  in  political  development.  In  Greek  classic  times 
philosophers  not  infrequently  undertook  to  write  out  on 
request,  model  constitutions  for  particular  states;  and 
Aristotle,  in  preparation  for  his  famous  work  on  "Poli- 
tics" gathered  together,  it  is  said,  the  constitutions  of 
some  two  hundred  and  fifty  states.  In  other  words,  he 
had  prepared  for  him  a  statement  of  the  fundamentals  of 
the  governmental  systems  of  these  several  states.  Simi- 
larly the  constitution  of  any  state  can  be  studied  and  set 
forth  by  any  competent  person  familiar  with  the  political 
system  of  the  state  in  question. 

'  See  pages  170-174. 

'  For  studies  of  American  administration,  see  Bibliography  under 
names  Fairlie  and  Goodnow. 


246  THE   DEVELOPMENT   OF  THE   STATE 

A  confusion,  however,  arises  in  modern  times  owing 
to  the  introduction  of  the  written  constitution.  This 
formal  document  theoretically  contains  such  fimda- 
mentals  only,  as  should  be  found  in  constitutions.  In 
fact,  however,  for  reasons  unnecessary  to  explain  here, 
written  constitutions  seldom  if  ever  contain  all  the  funda- 
mentals, and  may  embody  many  matters  of  minor  im- 
portance. In  the  United  States  of  America,  for  instance, 
the  national  written  constitution  would  give  an  intelli- 
gent foreigner  a  somewhat  vague  comprehension  of  our 
constitutional  system.  He  would  need  to  supplement 
his  knowledge  by  such  information  as  is  contained  in 
Bryce,!  and  in  some  treatise  on  the  constitutional  law 
of  the  land.  On  the  other  hand,  if  he  desired  to  under- 
stand the  constitutional  system  of  one  of  the  common- 
wealths by  a  study  of  its  written  constitution,  he  would 
be  overwhelmed  by  the  mass  of  petty  detail  of  local  and 
temporary  importance  contained  therein.  Yet  these 
"vsTitten  formal  documents,  from  the  legal  standpoint, 
must  be  treated  as  the  fundamental  law  of  the  state  or 
commonwealth,  with  which  no  custom,  ordinance  nor 
statute  should  conflict.  In  states,  therefore,  having 
written  constitutions  there  is  the  possibility,  and  even 
the  necessity,  of  two  lines  of  constitutional  study — 
namely,  the  study  of  the  written  document  as  the 
technical,  fundamental  law,  and  the  study  of  the  con- 
stitution as  it  really  is,  that  is,  made  up  partly  from  the 
written  and  partly  from  the  unwritten  fundamental  law 
of  the  land.  This  complication,  while  unfortunate,  is 
after  all  not  in  practice  serious.  Familiarity  with  the 
*  "American  Commonwealth." 


CLASSIFICATION  OF  LAW  247 

notion  of  a  constitution  enables  one  readily  to  add  to 
the  written  document  whatever  is  needed,  subtracting 
from  it  at  the  same  time  whatever  is  petty  and  local  in 
character. 

The  rise  of  a  separate  body  for  legislative  purposes 
in  governmental  systems  results  in  a  form  of  law  known 
as  the  statute  or  the  act.  This  is  presumed 
statute.  always  to  harmonize  with  the  fundamental  or 
constitutional  law,  applying  its  principles  to 
the  changing  conditions  of  political  life.  In  federations 
there  will  be  a  dual  series  of  statutes  or  acts :  those  of  the 
national  lawmaking  body  and  those  of  the  several  com- 
monwealths of  the  federated  state. 

In  the  development  of  English-American  law  an  im- 
portant distinction  has  arisen  between  common  and 
equity  law.  A  decision  based  on  custom  may 
prove  to  be  in  itseK  unjust.  A  moral  or  just 
custom  of  one  age  may  prove  to  be  the  reverse 
a  few  generations  later.  If  a  state  aims  to  secure  justice 
it  may  rectify  unjust  decisions  by  authorizing  some 
person,  as  the  king,  to  correct  the  error  in  a  particular 
case.  This  is  the  basis  of  the  pardoning  power  of  the 
executive,  who  by  its  exercise  may  temper  justice  with 
mercy,  or  at  any  rate  with  expediency.  A  special  form 
of  this  power  developed  in  England  when  the  king 
authorized  the  lord  chancellor,  who  in  those  days  was 
regularly  an  ecclesiastic  and  the  king's  spiritual  adviser, 
to  soften  the  rigors  and  to  amend  the  defects  of  the 
common  law  by  the  introduction  of  equitable  principles. 
These  he  derived  from  his  knowledge  of  Roman  and 
oanon  law  and  classic  philosophy.     From  these  there  de- 


Equity 

law. 


248  THE   DEVELOPMENT   OF   THE   STATE 

veloped  a  sj'stem  of  equity  law,  which  for  centuries 
flourished  side  by  side  with  the  common  or  customary 
law  of  the  land.  As  the  decisions  of  equity  courts  are 
in  effect  orders  of  the  king  or  executive,  they  are  tech- 
nically known  as  decrees,  not  as  decisions.  These  two 
systems  of  law,  with  their  separate  courts  and  procedure, 
are  slowly  amalgamating,  and  in  certain  of  the  common- 
wealths of  the  United  States  of  America  have  been 
merged  into  one  definite  system.^ 

When  the  church  played  an  important  part  in  polit- 
ical life,  and  had  jurisdiction  over  many  matters  now 
exercised  by  the  state,  it  evolved  from  custom 
ia^°"  certain  rules  and  principles  that  became  the 
basis  of  an  ecclesiastical  law.  Such  law  is  still 
politically  important  in  those  states  closely  identified 
with  the  church.  The  Christian  church  in  its  connection 
with  the  Roman  empire  worked  out,  largely  from  Roman 
law,  a  canon  law,  regulating  ecclesiastical  polity  and 
activity.  The  influence  of  this  law  is  still  felt  in  such 
functions  as  have  passed  from  ecclesiastical  to  political 
control,  as,  for  instance,  marriage,  divorce  and  relation- 
ships. Canon  law  itself  has  at  the  present  time  small 
political  importance.  In  the  same  manner  can  be  traced 
in  the  law  of  the  land  many  survivals  of  other  codes  that 
once  were  private  rather  than  public,  such  as,  for  in- 
stance, once  centered  in  paternal  authority,  or  in  the 
law-merchant  and  guild  customs  of  economic  life. 

States  in  their  intercourse  one  with  another  have  too 
often  lived  in  a  condition  of  continuous  war,  the  only 

'  For  a  list  of  these,  see  "Our  State  Constitutions,"  pp.  39,  40,  by 
the  author. 


CLASSIFICATION   OF   LAW  249 

peace  being  that  which  follows  devastation.  But  civi- 
lized states  prefer  peace,  and  in  the  pursuit  of  it  have 
developed  a  system  of  rules  and  regulations 
national  kuowu  as  international  law.  This  is  not  law  in 
'^*'  the  sense  that  it  is  enforceable  by  the  state. 

It  is  a  collection  of  customs,  ethical  standards  and  rules 
agreed  on  by  general  consent.  Its  chief  principles  are 
founded  on  the  practices  of  great  states,  and  enforce- 
ment depends  on  the  pressure  of  opinion  and  the  fear 
of  war  in  case  of  violation.  Its  modern  development 
dates  from  the  time  of  Grotius  (1583-1645),  who,  in  his 
"  De  jure  belli  ac  pacis,"  set  forth  its  principles,  derived 
from  analogies  in  Roman  and  natural  law,  and  from 
the  practices  of  nations. 

Akin  to  international  law  in  origin  is  admiralty  law, 
which  deals  with  cases,  civil  and  criminal,  that  arise  in 
connection  with  commerce  on  the  high  seas  and  prize 
cases  in  time  of  war.  Obviously,  customs  arising  on  land 
could  hardly  apply  to  such  matters,  and  a  system  of  law 
has  been  developed  from  principles  of  ancient  maritime 
codes,  Roman  law  and  analogies  derived  from  common 
law. 

There  is  an  important  distinction  between  what  is 

known  as  public  and  as  private  law.     Whenever  the  in- 

_,    terests  of  the  state  as  such  are  involved,  the 

Public  and  _  ^  ' 

private  law  bearing  on  such  interests  is  part  of  the 
**^"  public  law.     WTienever  the  interests  at  stake 

are  primarily  individual,  the  law  is  private  law.  Inter- 
national law,  so  far  as  it  concerns  the  interests  of  states, 
is  public;  but  so  far  as  it  concerns  the  interests  of  indi- 
viduals who  happen  to  be  subjects  of  different  states,  it 


250  THE   DEVELOPMENT   OF   THE   STATE 

is  private.  The  law  regulating  the  property  rights  of 
individuals  is  private;  but  criminal  law  is  a  branch  of 
public  law,  as  also  are  the  branches  of  administrative 
and  constitutional  law.  In  other  words,  public  law  is 
that  in  which  the  state  is  itself  directly  and  primarily 
concerned,  while  private  law  regulates  the  relations  of 
individuals  one  to  the  other.  A  distinction  is  sometimes 
made  between  international  law,  which  is,  technically 
speaking,  not  law  but  custom,  and  that  law  which  affects 
the  internal  interests  of  the  state.  This  is  often  referred 
to  as  municipal  law.  Municipal  public  law  and  munici- 
pal private  law  are  both  the  law  of  the  land  in  that  they 
are  both  sanctioned  and  enforced  by  the  state.  Inter- 
national public  law,  as  already  explained,  is  sanctioned 
and  enforced  only  by  international  public  opinion,  guid- 
ing itself  by  the  customs  and  precedents  of  states. 

A  common  law  system,  such  as  that  employed  by  Eng- 
lish-speaking peoples,  is  based  on  custom  as  determined 
by  precedent  and  judicial  decision.  Roman 
law  in  its  development  was  also  a  common  law 
system.  The  codification  of  Roman  law  under 
Justinian  suggested  to  modern  states  the  idea  that  the 
law  of  the  land  should  be  embodied  in  a  definite  code 
systematically  arranged  and  formally  written,  as  the 
final  authority  for  judicial  decisions.  The  respective 
merits  of  these  two  systems  of  law  are  still  a  matter  of 
debate.  The  code  system  is  in  use  throughout  the  civil- 
ized world  except  in  English-American  countries.  In 
the  commonwealths  of  the  United  States  of  America 
there  are  approximations  to  the  use  of  a  code  in  (a)  the 
consolidated  statute,  that  is,  the  incorporation  into  one 


Codifica- 
tion. 


CLASSIFICATION   OF   LAW  251 

general  enactment  of  all  the  statutes  relating  to  a  par- 
ticular branch  of  the  law,  and  (6)  in  the  codification  of 
particular  branches  of  public,  but  rarely  private,  law. 

SPECIAL  REFERENCES 

Law    through    the    Executive:     Anson,    Fairlie,    Goodnow, 

Lowell. 
Roman  Law:  Morey,  Sohm;  Bryce,  "Studies." 
Constitutional  Law:  Ridges  (England),  American  commenta- 
tors such  as  Storey,  Cooley,  Kent,  Foster,  and  Tucker. 
For  a  short  discussion:  Emlin  McClain,  "Constitutional 
Law  in  the  United  States,"  1905.  For  a  statement  of  the 
Constitutional  provisions  of  twenty-two  important  States: 

DODD. 

Codification:  Clarke. 

Brief  Statement  of  International  Law:  Wilson  and  TuCKEH. 

Brief  Studies  of  General  Law:  Holland  and  Lee. 


CHAPTER  XII 

LAWMAKING   OR   LEGISLATION 

The  Growth  of  Law 

It  is  hardly  necessary  to  say  again  that  laws  in  the 

beginnings  of  political  life  were  not  made  at  all  in  the 

modern  sense ;  they  grew  out  of  well-recognized 

Unchang-     gugtoms    and   long-standing   habits   of   mind. 

mg  law.  *=>  " 

Naturally,  in  savage  or  nomadic  life  many  cus- 
toms would  seem  even  more  ancient  than  they  were  to 
men  whose  memory  of  things  seldom  went  back  of  three 
generations.  When  codes  of  laws  were  memorized  and 
handed  down  by  tradition,  as  so  frequently  was  the  case, 
or  when  the  invention  of  the  art  of  writing  supplemented 
the  memory  of  man,  far  greater  fixity  and  conservatism 
were  possible  in  both  law  and  custom.  Hence  ancient 
political  systems  of  the  patriarchal  type  always  assumed 
that  the  law  of  the  land  was  permanent  and  immutable, 
like  the  "  law  of  the  Medes  and  Persians,  which  altereth 
not,"  ^  or  the  ancient  and  long-standing  customs  of  Eng- 
land, tracing  back  to  a  "time  whereof  the  memory  of 
man  runneth  not  to  the  contrary."  ^  Founded  on  tradi- 
tional custom  as  ancient  law  was,  and  in  a  static  civili- 
zation, it  seemed  changeless  and  divine.     Only  impious 

'  Daniel  vi,  8. 

'  See  Blackstone's  "Commentaries,"  Introduction,  Section  3. 

252 


LAWMAKING   OR   LEGISLATION  253 

hands  would  dare  to  alter  sacred  customs  ordained  and 
sanctioned  by  the  gods.  But  no  set  of  customs  is  suffi- 
cient to  meet  the  minute  requirements  of  everyday  life, 
and  hence  there  has  regularly  been  a  sort  of  necessity 
for  a  periodic  modification  of  the  old  and  introduction 
of  the  new.  There  are  several  processes  whereby  such 
changes  were  accomplished. 

A-  fundamental  and  prolific  source  of  change  arises 
from  conquest.  The  history  of  civilization  is  one  long 
Chan  series  of  conquests  and  compulsory  amalgama- 

through  tions.  Every  subjugation  implies  modification 
conquest.  ^^  custom.  Neither  party  can  maintain  its  own 
customs  intact.  Some  are  ruthlessly  suppressed,  others 
modified  and  others,  again,  slowly  assimilate  through 
unconscious  imitation.  Similarity  of  environment  also 
tends  to  produce  uniformity  of  custom.  Such  processes 
are  always  going  on  in  human  experience,  and  numerous 
illustrations  of  it  in  modern  times  will  readily  suggest 
themselves.  ^ 

Again,  no  matter  how  static  a  civilization  may  be,  no 
generation  has  just  the  same  environment  as  its  prede- 
change  cessor,  nor  do  its  people  interpret  customs  ex- 
i^wp^eta-  ^ctly  as  did  their  ancestors.  Hence  by  a  slow 
tion-  and  gradual  process  changes  creep  into  the  law, 

unheeded  and  unknown  except  as  comparisons  can  be 
made  at  intervals  of  several  generations.  This  tendency 
may  be  supplemented  by  formal  interpretation  of  the 
law  and  by  the  aid  of  the  legal  fiction.  Judges  in  all  ages, 
in  their  anxiety  to  satisfy  their  sense  of  justice,  will  strain 
the  meaning  of  the  law  on  the  assumption  that  the  law 

'  For  instance,  in  India,  in  Alsace-Lorraine. 


254  THE  DEVELOPMENT  OF  THE  STATE 

intends  to  do  right  but  happens  at  times  to  be  somewhat 
unfortmiate  in  its  phraseology.  This  beUef  in  the  in- 
herent justice  of  the  law  leads  in  all  ages  to  the  intro- 
duction of  legal  fictions,  so  marked  in  their  influence  in 
the  development  of  Roman  and  English  law.  The  fic- 
tion assumes  a  thing  to  be  true  in  law  which  is  plainly 
not  true  or  is  probably  false.  The  end  always  must  be 
justice,  not  injury,  so  as  to  satisfy  the  spirit  of  the  law. 
Numerous  illustrations  of  legal  fiction  still  survive  in 
modern  legal  systems,  but  its  importance  as  a  modifier 
of  law  has  been  superseded  by  legislation.^ 

Akin  to  interpretation  is  the  influence  exerted  by 
learned  commentators  of  the  law.  Every  legal  system, 
The  influ-  whether  secular  or  religious,  develops  a  body  of 
*°"°^        learned  men  who  devote  themselves  to  a  close 

commen- 
tators, philosophic  study  of  the  law.     The  judge  seeks 

to  apply  a  principle  to  a  case,  but  the  jurist  seeks  to 
ascertain  the  principle  involved  in  the  law,  and  to  har- 
monize it  with  broad  ethical  principles.  They  may,  of 
course,  go  too  far  in  their  search  for  principles  and  may 
find  them  on  the  point  of  a  needle  or  in  the  crossing  of  a 
i,  but  such  casuists  do  not  exert  a  permanent  influence. 
A  jurist,  however,  who  with  reason  and  lucidity  shows 
the  inner  meaning  of  law  in  its  relation  to  a  larger  sphere 
of  life,  is  always  listened  to  with  deference  and  his 
opinions  gradually  influence  the  reasoning  of  other  jurists 
and  judges.  In  this  w^ay  the  profound  wisdom  of  eminent 
Roman  and  Anglo-American  commentators  deeply  influ- 
enced the  development  of  those  systems,  as  their  ideas 

^  See  S.  E.  Baldwin,  "The  Decadence  of  the  Legal  Fiction," 
Chapter  VIII  in  "Modern  PoUtical  Institutions." 


LAWMAKING   OR   LEGISLATION  255 

became  slowly  atssiniilated  to  the  legal  knowledge  of  their 
times. 

Codifications  of  customs  have  proved  to  be  a  great 
source  of  innovation,  and  many  of  them  have  been  im- 
The  influ-  portant  in  the  development  of  civilization.  Tlie 
*''"°*        oldest  extant  is  that  of  Hammurabi,^  dating 

codifica-  " 

tions.  back  to  2285-2242  B.C.     The  codification  of 

Hebraic  custom  contained  in  the  pentateuch  is  familiar 
to  most  of  Christendom,  The  Orient  has  many  codes,  a 
knowledge  of  which  is  becoming  increasingly  common  in 
western  civilization.  The  twelve  tables  of  Roman  law 
and  the  codification  of  Justinian  mark  two  great  epochs 
in  legal  history.  Teutonic  and  Celtic  codifications  are 
numerous  and  form  important  landmarks  in  early  Euro- 
pean history.2  In  more  modern  times  the  code  of  Na- 
poleon and  the  recently  adopted  codes  of  Germany  and 
Japan  are  tj^pical  in  character  and  importance.  Codifi- 
cations arise  from  several  causes,  chief  of  which  is  the 
conflict  of  rival  interests  and  resultant  compromises.  In 
the  process  of  subjugation  the  conflicting  customs  of  con- 
querors and  conquered  may  result  in  a  codification  of 
customs  in  order  that  each  may  know  the  other's  law; 
ultimately  a  compromise  may  formulate  a  statement  of 
what  law  shall  be  enforced  in  the  community.  Class 
struggle  or  revolution  within  a  state  may  in  a  similar 
manner  result  in  a  compromise  that  may  be  formally  ex- 
pressed in  a  definite  code,  at  times  partaking  almost  of 
the  nature  of  a  treaty  between  warring  parties,  as,  for 

*  See  Harper  in  Bibliography. 

^  See  for  illustrations,  Jenks,  "Law  and  Politics  in  the  Middle 
Agea." 


256  THE   DEVELOPMENT   OF   THE   STATE 

instance,  the  ten  tables  of  Rome  and  the  Magna  Charta.  * 
Codifications  may  also  be  due  to  important  changes  in 
the  internal  conditions  of  the  communit}^,  or  to  a  scientific 
desire  for  a  clearer  statement  of  existing  law,  especially 
when  it  is  complicated  by  a  conflicting  mass  of  interpre- 
tations due  to  the  lapse  of  centuries.  The  invention, 
also,  of  the  art  of  writing  seemed  to  result  in  codifications 
of  law  as  an  aid  to  memory. 

Codifications  are  important  in  the  history  of  legisla- 
tion because  they  are  in  efi'ect  real  legislation.  No  codi- 
Codifica-  fication  can  be  an  exact  statement  of  all  the 
of°k^is^a-^  customs  at  that  time  enforceable  by  the  state, 
tioa.  Some  will  be  omitted  from  the  written  state- 

ment, changes  may  be  made  inadvertently  or  intention- 
ally and  perhaps  even  important  provisions  added.  In 
former  times  the  fact  that  a  thing  was  written  gave 
sanctity  to  it  in  general  estimation.  A  written  code, 
therefore,  becomes  a  sort  of  sacred  law,  not  to  be  tam- 
pered with  by  profane  hands,  each  word  of  which  has  a 
weighty  meaning.  Development,  therefore,  inevitably 
takes  place  through  interpretation,  aided  by  the  legal 
fiction,  and  this  process  may  go  on  for  centuries.  Roman 
law,  for  instance,  at  the  height  of  its  development  was 
theoretically  supposed  to  be  identical  with  the  law  of 
the  twelve  tables,  just  as  the  English  common  law  of  to- 
day is  supposed  to  be  the  same  in  theory  as  that  formu- 
lated centuries  ago  in  the  Magna  Charta  and  the  judicial 
decisions  of  the  thirteenth  century.  The  so-called  "  wor- 
ship of  the  constitution"  in  the  United  States  of  America 
presents  the  same  phenomenon.  This  document  has  in 
»  Note,  for  instance,  Section  61  of  Magna  Charta. 


LAWMAKING   OR   LEGISLATION  257 

form  changed  but  slightly  in  the  last  hundred  years,  but 
its  makers  would  have  difficulty  in  understanding  its 
modern  meaning  as  reached  through  interpretation. 
Similar  illustrations  might  be  made  from  the  numerous 
creeds  that  regularly  develop  from  varying  interpreta- 
tions of  inspired  writings.  In  other  words,  the  phrase- 
ology of  the  code  becomes  a  reservoir  of  an  infinity  of 
meanings,  and  each  generation  selects  from  the  store- 
house such  interpretations  as  suit  the  conditions  and 
ideals  of  the  times. 

In  all  these  possibilities  of  change  in  existing  law,  the 
underlying  assumption  was  that  the  law  was  the  same, 
Lawmak-  unchangiug,  inherently  divine  and  fundamental 
"le  to  civic  welfare.     But  there  developed  in  the 

through  .  1  •      11 

the  ex-  executive  a  power  that  practically  amounted 
ecutive.  ^Q  ^j^g  formulation  of  new  law.  As  head  of  the 
state,  the  foimtain  of  justice  and  the  brain  of  his  people, 
the  king  was  supposed  to  watch  over  the  interests  of 
the  community  and  secure  its  welfare.  In  so  doing  he 
issued  decrees,  ordinances,  proclamations  calling  atten- 
tion to  the  law,  supplying  its  details  and  making 
application  of  it  to  existing  conditions.  In  this  work 
he  was,  of  course,  aided  by  his  council,  which,  by  the 
wisdom  and  experience  of  its  members,  gained  influence 
in  governmental  policy.  The  decisions  of  king  and  coun- 
cil plainly  could  not  and  would  not  always  conform  to 
the  strict  letter  of  the  law.  New  conditions  demand  new 
theories,  and  under  color  of  the  old  the  king  would  decree 
the  new.  An  entirely  new  condition  would  necessitate 
an  entirely  new  law,  itself  divhic  in  origin  as  emanating 
from  a  divinely  appomted  ruler.     In  this  way  executives 


258  THE   DEVELOPMENT   OF   THE  STATE 

gradually  assumed  the  right  to  modify  ancient  customs 
and  make  new  law  when  need  demanded. 

The  same  theory  would  apply  to  the  assemblies  of 
democratic  city  states.  These  were  not  supposed  to  alter 
Lawmak-  the  existing  constitution,  but  in  practice,  in 
ing  through  ^^^^^^  ^g  would  Call  the  exercise  of  police  power, 

ancient  i  x  7 

assembues.  they  ofteu  initiated  new  legal  principles  which 
would  themselves  seem  to  be,  before  many  years  had 
elapsed,  ancient  and  long-standing  customs.  In  modern 
systems  the  royal  council,  as  already  explained,  has  de- 
veloped into  a  legislative  body  whose  acts  when  approved 
by  the  executive  become  law.  But  the  ordinance  power 
of  the  latter  department  still  survives  and  is  exercised  in 
all  states.  In  relative  importance  it  yields  to  legislation, 
which  it  is  supposed  merely  to  supplement.  If  necessity, 
however,  should  demand,  this  ordinance  power  of  the  ex- 
ecutive becomes  of  the  utmost  importance;  in  times  of 
crisis,  in  the  form  of  war  power,  police  power  or  preroga- 
tive, it  may  temporarily  even  supersede  the  ordinary  law 
of  the  land.  The  Roman  dictatorship  furnishes  a  pe- 
culiar form  of  such  temporary  despotic  power  in  the 
executive,  and  also  illustrates  the  fact  that  legal  irre- 
sponsibility during  the  crisis  is  regularly  followed  by 
accountability  with  the  return  of  peace. 

Modern  legislation  is  not  the  result  of  a  system  care- 
fully plaimed  in  advance  and  put  into  operation  by  wise 
statesmen.  Rather,  it  is  an  accidental  growth 
u^tiltion.  ^^^  t^®  result  of  numerous  petty  matters  of 
small  consequence  in  themselves.  When  the 
English  crown  in  the  thirteenth  century  summoned  un- 
willing delegates  from  the  shires  and  boroughs  to  meet 


LAWMAKING   OR   LEGISLATION  259 

him  for  the  discussion  of  money  grants,  it  was  merely  a 
tactful  device  to  obtain  larger  grants  in  a  more  expedi- 
tious manner.  It  was  a  small  thing  to  give  in  return 
some  slight  favor  petitioned  for  by  the  delegates.  To 
be  sure,  these  petitions  began  to  come  as  a  matter  of 
course  when  the  delegates  met  in  session,  and  the  re- 
quests were  increasing  in  importance,  but  promises  were 
easily  made  when  much-needed  money  was  in  sight.  It 
was  a  little  more  serious  when  royal  promises  had  to  be 
fulfilled  before  the  grants  were  made,  but  it  was  hard  to 
refuse  under  the  circumstances.  Yet  a  century  or  two 
of  this  sort  of  thing  set  precedents  for  later  centuries, 
and  it  was  natural  enough  that  a  body  of  delegates  repre- 
senting constituencies  rapidly  increasing  in  wealth,  in- 
telligence and  importance  should  enlarge  from  time  to 
time  the  scope  of  their  petitions.  When  the  issue  was 
fairly  joined  in  the  seventeenth  century,  and  the  Stuart 
kings  awoke  to  the  fact  that  the  house  of  commons  did 
not  really  believe  in  royal  supremacy  and  divine  right, 
matters  had  gone  too  far  to  be  checked.  The  beheading 
of  Charles  I  and  the  dethronement  of  James  II  taught 
the  Crown  that  a  petition  of  the  House  was  a  command, 
couched  in  respectful  terms.  In  this  humble  way  de- 
veloped modern  legislation,  a  most  powerful  and  effective 
device  for  the  abolition  of  the  obsolete  and  the  establish- 
ment of  the  new,  as  France  learned  in  the  eighteenth 
century. 

Modern  legislation  does  not  profess  to  be  a  mere  inter- 
pretation of  the  law,  but  boldly  proclaims  that  it  aims 
to  formulate  new  law.  The  introduction  of  this  method 
of  lawmaking  is  the  deathblow  to  enlargement  of  law 


260  THE   DEVELOPMENT   OF   THE   STATE 

by  legal  fiction,  interpretation,  equity  principles  or  royal 
ordinance.  Circumlocution  becomes  no  longer  neces- 
^jjg  sary,  for  a  legislature  has  but  to  pass  a  statute 

making  of  embodying  needed  changes  and  the  thing  is 
done.  The  older  devices  are  of  use  only  when 
legislation  is  impossible.  In  times  of  sudden  crisis 
ordinance  power  comes  to  the  front.  With  a  written 
constitution  virtually  impossible  of  amendment  by  legis- 
lation, as  is  the  constitution  of  the  United  States  of 
America,  interpretation  must  be  relied  on.  But  these 
devices  rapidly  pass  into  disuse  as  legislatures  obtain 
control  of  lawmaking  and  meet  frequently  for  the  con- 
sideration of  possible  changes.  To  be  sure,  there  are 
natural  limitations  to  this  apparent  omnipotence  of  legis- 
latures. After  all,  only  those  laws  can  be  enforced  which 
conform  to  the  customs  and  practical  ideals  of  social  life. 
New  law  must  suit  conditions  or  it  proves  ineffective. 
An  unscientific  law  may  involve  some  alteration  in  hu- 
man nature  and  a  statesman  will  hesitate  long  before  he 
attempts  that.  Then,  too,  incompetency  and  corrup- 
tion on  the  part  of  legislatures  inevitably  result  in  a 
lessening  of  their  powers,  and  consequent  increase  in  the 
powers  of  the  other  departments  of  government.  Yet, 
after  all  is  said,  modern  legislation  is  a  most  powerful  ad- 
dition to  governmental  machinery,  and  when  rightly 
utilized  can  become  productive  of  much  good  in  the  state. 
These  several  tendencies  in  legislation  point  to  a  time 
when  legislation  will  be  far  more  scientific  than  it  is  at 
present.  American  lawmaking  bodies  formulate  entirely 
too  many  rules  for  petty  and  routine  matters,  which 
might   more  wisely  be  left  to  administrative   bodies. 


LAWMAKING   OR   LEGISLATION  261 

JVIuch  hasty  legislation  could  be  vastly  improved  if  legis- 
lators were  more  familiar  with  the  experiments  and  ex- 
o  •   ^^       periences  of  other  lawmaking  bodies.     Bureaus 

Scientific        '^  ^ 

legisia-  for  the  study  of  comparative  legislation,  like 
that  of  New  York,  the  legislative  reference  bu- 
reau developed  by  Wisconsin  and  commissions  appointed 
for  the  special  study  of  important  topics  are  steps  in  this 
direction. 

But  really  scientific  legislation  is  as  yet  an  ideal  to  be 
attained.  The  fault  found  with  legislatures  is  chiefly 
due  to  their  failure  to  satisfy  the  ideals  aroused  by  the 
optimistic  democracy  of  the  eighteenth  century.  We  all 
have  to  adni^t  the  truth  of  Spencer's  denunciation  of  the 
"Sins  of  Legislators"  ^  and  of  the  perennial  criticisms  of 
American  legislation.  There  is  a  vigorous  demand  that 
legislation  be  wiser,  and  that  it  emphasize  permanent 
general  interests  through  a  knowledge  of  the  laws  of 
human  nature  and  social  development.  Jeremy  Ben- 
tham  (1748-1832)  voiced  this  demand  for  the  nineteenth 
century  in  his  "Theory  of  Legislation."  ^  Sociological 
studies  will  make  possible  for  the  twentieth  century  a 
still  wiser  theory. ^ 

Legislation  is  too  largely  prohibitive  in  kind,  aiming 
to  suppress  by  threats  certain  supposed  evil  tendencies 
in  human  nature.  The  doctrine  of  human  depravity  is 
not  so  popular  as  formerty,  and  the  question  arises 
whether  threats  of  punishment  are  really  efficacious  in 

*  See  "Man  Versus  the  State."    Also  discussion  of  this  topic  by- 
Ritchie  (BibHography). 
2  Edition,  1871.     London. 
'  See  for  a  suggestion,  Ward's  "Applied  Sociology,"  pp.  337-339- 


262  THE   DEVELOPMENT   OF   THE  STATE 

preventing  crime.  Men  are  more  easily  influenced  to 
do  right  than  intimidated  from  wrong.  The  principles 
used  in  horticulture  and  stirpiculture  indicate  the  method 
to  be  followed  in  scientific  legislation;  we  should  assume 
that  there  is  much  potential  perfectibility  in  human  na- 
ture. Social  conditions  should  be  so  adjusted  as  to  assist 
in  the  development  of  this;  evil  tendencies  will  thereby 
atrophy  from  disuse.  Preventive,  probative  and  re- 
formative methods  are  cheaper  and  wiser  in  the  long  run 
than  punitive.  The  principle  of  self-interest  can  be  ap- 
pealed to  in  such  a  way  as  to  foster  respect  for  law,  not 
disregard  of  it.  The  beginnings  of  such  legislation  may 
already  be  seen  in  laws  already  formulated,  and  illus- 
trations are  not  hard  to  find.  The  necessity  of  raising 
taxes  without  too  much  friction  has  sharpened  legislative 
ingenuity  so  that  there  are  many  scientific  elaborations 
of  laws  in  regard  to  taxation.  The  taxation  of  luxuries 
as  against  necessities,  for  example,  or  a  slight  discount 
for  prompt  payment,  illustrate  this.  The  probation  sys- 
tem for  petty  offenses  and  the  reduction  of  terms  of 
imprisonment  for  good  behavior  prove  efficacious  in  re- 
ducing crime.  If  illegitimacy  is  common  through  the 
heavy  expense  of  a  formal  religious  marriage,  the  legali- 
zation of  a  civil  marriage  at  nominal  cost  largely  reduces 
the  per  cent.  ^  A  wise  divorce  law  proves  a  great  aid  to 
social  morality,  and  the  Gothenburg  license  system, 
through  the  elimination  of  private  profits,  considerably 
reduces  intemperance.  The  American  device  of  reduc- 
ing the  cost  and  difficulty  of  securing  a  patent  power- 

»  This  finds  many  illustrations  in  the  experience  of  Latin-American 
governments. 


LAWMAKING  OR  LEGISLATION  263 

fully  stimulates  invention.  The  reduction  of  the  cost  of 
postage  is  a  well-known  instance  of  an  aid  to  commercial 
and  industrial  expansion.  Many  governments  stimulate 
local  administrative  efficiency  by  offering  to  pay  part 
of  the  expense  if  a  set  standard  is  maintained,  i  Other 
illustrations  will  readily  suggest  themselves. 

The  success  already  achieved  along  such  lines  gives 
hope  that  legislatures  may  in  time  become  intelligent 
enough  to  formulate  such  legislation  regularly.  Plato 
said  2  that  perfect  government  would  come  when  wise 
men  legislate  or  legislators  become  wise.  An  unintelli- 
gent democracy  is  like  a  rudderless  ship,  for  scientific 
government  above  all  things  requires  an  intelligent  pub- 
lic opinion;  but  this  condition  depends  on  the  growth  of 
general  scientific  knowledge,  political  intelhgence  and 
civic  patriotism. 

When  legislation  has  been  passed  by  a  lawmaking 
body  and  sanctioned  by  the  executive,  its  provisions 
presumably  must  be  observed  throughout  the 
kStfon.  state.  But  such  legislation  may  be  in  violation 
of  the  letter  and  spirit  of  the  constitution. 
Under  such  conditions  a  department  of  government  or 
a  citizen  conceivably  might  refuse  to  enforce  or  to  obey 
the  law.  Government  would  soon  become  a  farce  unless 
conflicting  interpretations  could  be  settled.  The  con- 
stitution may  itself  specify  w^hat  department  shall  finally 
decide  on  the  legality  of  a  law;  but,  failing  that,  in  auto- 
cratic monarchies  whatever  the  king  sanctions  is  the  law 

>  England,  for  example. 

* "  States  will  prosper  when  kings  become  philosophers,  or  phi- 
losophers kings." 


264  THE   DEVELOPMENT   OF   THE   STATE 

and  must  be  enforced  and  obeyed.  In  constitutional 
monarchies  the  will  of  the  legislature,  approved  or  even, 
perhaps,  if  disapproved  by  the  king,  is  the  deciding  fac- 
tor. In  the  United  States  of  America,  however,  both 
the  legislative  and  executive  departments  may  agree  as 
to  the  legality  of  a  law  and  yet  when  it  is  brought  before 
the  courts  as  the  law  bearing  on. a  case  it  may  be  decided 
to  be  unconstitutional  and  hence  null  and  void.  This 
decision  is  final  and  is  generally  respected  by  the  other 
two  departments  of  government.^  This  enormous  power 
placed  in  the  hands  of  the  American  judiciary  is  justified 
only  by  the  prominence  of  the  judiciary  in  the  English- 
American  systems  and  the  confidence  felt  in  the  impar- 
tiality of  its  decisions.  The  system  is  not  imitated  by 
other  states,  which  prefer  to  rely  on  decisions  made  by 
either  the  executive  or  the  legislative  departments. 

The  Written  Constitution 

Even  in  the  revolutionary  period  of  the  United  States 
of  America  the  evils  of  a  too  powerful  legislature  were 
recognized,  and  steps  taken  to  provide  a  rem- 
edy. The  chief  device  evolved  for  this  purpose 
was  the  written  constitution,  which  represents  a  new 
development  in  legislation.  The  origin  of  this  idea  seems 
to  be  twofold: 

(1)  In  all  confederations,  ancient  and  modern,  there  is 
need  of  a  sort  of  formal  compact,  which  may  or  may  not 

*  The  executive,  however,  has  on  several  occasions  ignored  such 
decisions  and  enforced  its  own  interpretation  of  the  constitution. 
See  for  discussion  of  this  point  Willoughby,  .'The  Supreme  Court," 
Chapter  VII. 


LAWMAKING   OR   LEGISLATION  265 

be  written,  in  which  will  be  set  forth  the  aim  and  organi- 
zation of  the  unity  and  the  powers  intrusted  to  it.  The 
same  principle  is  seen  in  the  charters,  granted  by  king, 
proprietor  or  trading  company  to  those  colonists  who 
settled  along  the  Atlantic  coast.  The  idea  also  is  found 
in  the  constitution  of  the  New  England  colonies  adopted 
by  the  confederation  of  1643-1683,  and  in  the  abortive 
union  of  the  Albany  convention  in  1754.  The  essence  of 
this  notion  is  the  treaty.  Parties  somewhat  suspicious 
of  one  another's  motives,  yet  desirous  of  securing  them- 
selves as  much  as  possible  against  common  dangers  and 
stimulated  by  the  hope  of  unitary  power  and  importance, 
form  agreements  and,  for  the  sake  of  greater  security, 
place  them  in  wTiting.  This  idea  is  plainly  seen  in  the 
American  constitutions  of  1781  and  1789,  and  finds 
modern  expression  in  such  documents  as  those  of  the 
German  empire  and  Australia.  Naturally,  the  contract 
theory  of  the  eighteenth  centuiy  powerfully  stimulated 
the  formation  of  such  compacts  or  contracts  in  the 
American  colonies.  ^ 

(2)  The  second  notion  involved  in  the  written  consti- 
tution is  that  of  a  check  on  the  powers  or  possible  des- 
As  a  check  po^i^m  of  government.  This  idea  also  derived 
on  despot-  much  of  Its  Strength  from  the  famous  contract 
theory  of  modern  times.  Its  early  develop- 
ment in  this  country  may  be  traced  to  the  Mayflower 
agreement  (1620)  and  to  the  Fundamental  Orders  of 
Connecticut  (1638).  The  idea  can  be  traced  in  England 
from  the  revolution  of  the  seventeenth  century  under 
Cromwell.  At  that  time  the  radical  wing  of  the  revolu- 
tionary party  insisted  that  there  should  be  adopted  a 


266  THE  DEVELOPMENT  OF  THE  STATE 

fundamental  law,  paramount  over  parliament,  contain- 
ing in  it  provisions  safeguarding  the  rights  and  liberties 
of  Englishmen.  This  demand  culminated  in  the  adop- 
tion of  the  first  written  constitution,  the  Instrument  of 
Government,  which  was  put  into  operation  in  1653,  but 
was  soon  modified  and  finally  disappeared  at  the  Restor- 
ation. ^  This  idea  of  a  fundamental  law,  however,  con- 
tinued to  be  discussed  in  political  writings  and  was  well 
known  in  America  through  the  works  of  Harrington  and 
Sydney.  It  found  its  way  into  the  early  constitutions, 
chiefly  in  the  form  of  bills  of  rights.  Then,  as  the  tyr- 
anny of  legislatures  became  manifest,  Massachusetts 
hit  on  the  happy  expedient  of  summoning  a  convention 
made  up  of  elected  delegates,  not  members  of  the  legis- 
lature, authorized  to  draw  up  a  constitution  which  would 
secure  popular  liberty.  By  maldng  the  constitution 
alterable,  not  at  the  wish  of  the  legislature  only,  but 
through  a  convention  voicing  the  wishes  of  the  elector- 
ate, there  was  secured  a  law,  above  the  legislature,  which 
could  be  amended  only  with  the  joint  consent  of  legisla- 
ture, convention  and  people.  From  that  time  the  con- 
stitutional convention  has  been  a  popular  instrument 
whereby  checks  and  restrictions  of  all  sorts  may  be- 
placed  through  the  constitution  on  the  powers  of  the 
several  departments  of  government. 

Since  the  American  revolution,  the  written  constitu- 
tion has  become  increasingly  important  as  a  factor  in 
political  development.  Its  use  in  political  systems  is 
constantly  growing,  whether  in   the  form  of  a  treaty 

•See  Borgeaud,  "Rise  of  Modern  Democracy,"  and  Gardiner's, 
'.'Constitutional  Documents." 


LAWMAKING  OR  LEGISLATION  267 

compact  or  a  regulation  of  governmental  powers  or  of 
both  combined.  It  passed  to  France  in  the  revolution- 
its  ow-  ^^^  period,  and  spreading  from  these  two  great 
ingim-  centers  of  political  influence,  the  written  con- 
por  ance.  g^jj^ution  has  bccome  the  form  of  fundamental 
law  throughout  all  of  Latin  America,  in  Japan  and  in 
most  of  the  states  of  Europe.  The  written  constitution 
may,  as  in  France,  consist  of  a  very  few  fundamental 
provisions,  too  important  to  be  treated  as  ordinary  legis- 
lation, or  may  consist  of  a  practically  complete  state- 
ment of  fundamentals,  as  in  the  United  States  of  Amer- 
ica. In  the  American  system  several  points  are  usually 
emphasized : 

(1)  The  constitution  regularly  specifies  what  powers 
may  be  used  by  the  usual  departments  of  government 
and  by  the  electorate.  Any  powers  not  so  assigned  or 
implied  from  those  assigned  are  reserved  powers,  and 
can  only  be  brought  into  use  by  an  amendment  to  the 
constitution.  The  advantage  of  this  system  is  obvious. 
If  the  government  had  full  sovereign  powers  it  might 
easily  become  autocratic  and  despotic.  But  if  the  con- 
stitution specifies  just  what  powers  the  government  may 
use,  it  is  equivalent  to  a  sort  of  guaranty  that  the  govern- 
ment will  be  on  its  good  behavior.  No  department  of 
government  by  theory  should  transgress  the  bounds  set 
for  it;  such  action  would  be  illegal  and  revolutionary. 

(2)  The  inconvenience  of  reserving  powers  that  can- 
not be  used  by  the  government  in  case  of  necessity  is 
met  by  providing  in  the  constitution  a  set  procedure  in 
accord  with  which  amendments  or  even  complete  re- 
visions may  be  made.    The  length  of  time  needed  to 


268  THE   DEVELOPMENT   OF  THE   STATE 

make  such  alterations  gives  opportunity  for  discussion, 
and  the  necessity  of  the  change,  therefore,  must  become 
clearly  manifest.  If  in  time  of  war  or  great  danger  a 
reserved  power  must  at  once  be  brought  into  use,  and 
the  crisis  does  not  allow  time  to  make  the  necessary 
amendments,  then  probably  the  government  would,  un- 
der the  war  or  police  power,  exert  any  authority  needed, 
and  after  the  crisis  would  presumably  revert  to  former 
conditions.  Then,  if  necessary,  the  constitution  may 
be  amended  at  leisure,  ^ 

From  one  standpoint  the  most  important  part  of 
a  written  constitution  is  the  provision  regulating  its 
amendment  and  revision.  If  such  a  provision 
mTnts."  i^  lacking,  then  the  written  constitution  hardly 
differs  from  a  statute  and  presumably  can  be 
amended,  revised  or  repealed  by  the  ordinary  channels 
of  legislation,  ^ 

In  the  early  American  written  constitutions  such  an 
omission  was  common,  but  as  the  importance  of  a  written 
fundamental  law  became  manifest,  provisions  were  in- 
serted which  authorized  the  ordinary  lawmaking  bodies 
by  special  procedure  to  make  amendments.  This  special 
procedure  involved  greater  deliberation  and  a  larger  vote 
for  the  passage  of  amendments,  under  the  theory  that  a 
fundamental  law  should  be  changed  as  little  and  as  sel- 
dom as  possible.  As  popular  democracy  developed  in 
the  United  States  of  America,  it  was  held  that  not 

*  Lincoln's  emancipation  proclamation,  followed  by  the  thirteenth 
amendment,  is  a  good  illustration  of  this  process. 

'  Italy,  for  example,  see  Lowell,  "Continental  Europe,"  vol,  i, 
pp.  150-151, 


LAWMAKING   OR   LEGISLATION  269 

merely  the  representatives  of  the  people  but  the  people 
themselves  should  have  a  direct  voice  in  the  making  of 
fundamental  law.  This  brought  about  the  submission 
of  amendments  by  referendum  to  the  electorate  for  their 
approval  or  rejection.  Experience  also  showed  that 
legislatures  were  not  always  eager  to  initiate  amendments 
especially  if  such  amendments  tended  to  deprive  them  of 
power;  hence  came  the  further  provision  that  constitu- 
tions should  be  made  and  revised,  not  by  legislatures, 
but  by  a  convention  especially  called  for  that  purpose. 
As  it  might  be  possible  for  a  legislature  to  refuse  to  call 
a  convention,  or  to  arrange  its  composition  in  such  way 
as  to  defeat  popular  demands,^  provisions  were  later  in- 
serted in  some  constitutions  that  a  convention  should 
be  called  at  stated  intervals,  or  that  a  referendum  be 
submitted  asking  whether  a  convention  should  or  should 
not  be  called,  and  providing  also  that,  if  called,  the 
membership  should  be  arranged  on  the  basis  of  popula- 
tion. By  such  devices  the  convention  has  in  many  com- 
monwealths of  the  United  States  of  America  come  to  be 
an  agency  through  which  the  electorate  may  (1)  outline 
the  framework  of  government  and  delegate  powers  to 
the  several  departments,  and  (2)  issue  mandates  to  their 
delegates  in  the  legislature  instructing  them  to  pass 
needed  legislation.  In  this  way  the  constitutional  con- 
vention has  become  a  most  efficient  means  of  enabling 
popular  demands  to  control  legislation.  This  tendency 
toward  democratic  influence  has  been  aided  by  a  lessen- 
ing of  the  rigidity  of  the  process  of  amendment  so  as  to 

•  The  Connecticut  convention  of  1901  is  an  illustration  of  this 
point.     See  "  Our  State  Constitutions,"  pp.  88-89. 


270  THE   DEVELOPMENT   OF  THE   STATE 

allow  constitutional  provisions  to  be  inserted  with  com- 
parative ease.  As  a  rule,  in  the  commonwealths  an 
amendment  may  now  be  passed  by  a  two-thirds  vote  of 
both  houses  of  the  legislature  and  a  majority  vote  of 
those  voters  voting  thereon  when  submitted  by  refer- 
endum. ^  By  contrast,  the  amending  clause  of  the  na- 
tional constitution  is  so  rigid  that  the  document  is  prac- 
tically unalterable.  Only  three  amendments  have  been 
made  since  1800,  and  these  were  forced  through  during 
the  period  of  reconstruction. 

A  written  constitution  regularly  has  a  preamble  or 
statement  of  reasons  and  purposes,  an  enacting  and  a 

ratifying  clause  and  a  schedule  or  section  em- 
its devel-  .  .   .  , 

opmentin  bracmg  provisions  ot  temporary  importance, 
states^'*^^  The  constitution  proper  may  contain,  in  ad- 
dition to  the  fundamentals  of  government,  a 
statement  of  personal  rights  in  life  and  property  guar- 
antied to  citizens.  Such  rights  thereby  become  binding 
on  the  government  and  prove  a  safeguard  against 
tyranny.  In  the  American  system  the  best  formal 
statements  of  such  rights  may  be  found  in  the  constitu- 
tions of  Massachusetts  and  Virginia.  The  length  of  con- 
stitutions naturally  will  vary  with  conditions.  The  bare 
framework  of  government  can  be  set  forth  in  a  few 
hundred  words,  but  it  may  be  elaborated  in  detail  for 
prudential  reasons,  so  as  virtually  to  include  everything 
seemingly  important.  Details  of  organization,  long 
series  of  limitations  on  governmental  powers  and  man- 
dates of  all  sorts  may  lengthen  out  the  document  inter- 
minably. The  Louisiana  constitution  of  1898,  for  ex- 
*  See  Chapters  II  and  III,  "Our  State  Constitutions." 


LAWMAKING  OR  LEGISLATION  271 

ample,  consists  of  about  forty  thousand  words.  The 
constitution  of  the  new  state  of  Oklahoma  is  nearly  a 
third  larger.  This  tendency  is  not  due  to  a  failure  to 
appreciate  the  distinction  between  fundamental  and  or- 
dinary law,  but  is  due  to  a  widespread  distrust  of  the 
legislatures.  These  bodies  now  find  themselves  limited 
in  power  and  restricted  and  regulated  in  every  possible 
way  by  constitutional  provisions  which  they  cannot  over- 
ride. This  tendency,  if  it  continues,  will  result  in  mak- 
ing the  convention  the  really  important  legislative  body, 
leaving  to  assemblies  the  power  merely  to  work  out  in 
detail  the  principles  set  forth  in  the  constitution.  In 
other  words,  it  will  become  a  sort  of  department  of  ad- 
ministration especially  set  apart  for  the  formulation  of 
ordinances. 

In  the  making  of  a  written  constitution,  the  constitu- 
tional convention,  an  especial  body  chosen  for  that  pur- 
pose, is  usually  employed.  But  there  are  ex- 
ve'ntio'n"  ccptious.  England  makes  no  distinction  in 
procedure  between  constitutional  and  ordinary, 
legislation.  The  same  body  acts  on  either  kind  indiffer- 
ently. In  France  the  bicameral  assembly  meets  as  a 
unicameral  national  assembly  and  with  special  procedure 
acts  on  constitutional  changes.  These  are  not  submitted 
to  referendum.  In  the  national  system  of  the  United 
States  of  America  changes  are  effected  by  the  lawmaking 
bodies  of  the  federation  and  the  commonwealths.  Such 
changes,  however,  are  not  subject  to  executive  veto,  as 
in  the  case  of  ordinary  legislation.  These  illustrations 
indicate  possibilities  in  the  practice  of  states,  but,  broadly 
speaking,  the  convention,  made  up  of  popularly  elected 


272  THE   DEVELOPMENT   OF  THE   STATE 

delegates,  chosen  for  the  special  purpose,  is  the  usual 
modern  agency  for  effecting  changes  in  constitutions. 
Two  theories  have  developed  in  respect  to  the  powers  of 
the  constitutional  convention. 

(1)  The  convention  as  an  agent  of  the  state  is  a  body 
of  limited  powers,  and  must  submit  its  work  to  the 
electorate  for  approval  or  rejection. 

(2)  The  convention  is  the  embodied  sovereignty  of 
the  people,  acting  for  the  people  and  in  the  name  of  the 
people  in  formulating  a  just  system  of  government. 
Hence  the  convention  is  for  the  time  being  the  people 
itself,  unfettered  by  legislative  injunctions  and  promul- 
gating the  constitution  when  made  on  its  own  authority, 
without  reference  even  to  the  people. 

The  second  theory  was  especially  prominent  in  the 
earlier  history  of  the  Latin-American  states  and  in  the 
commonwealths  of  the  United  States  of  America.  It  was 
necessarily  so  in  order  to  counteract  the  autocracy  of 
legislatures  or  executives.  It  is,  however,  gradually 
yielding  to  the  other  more  conservative  theory.  The 
convention,  as  such,  is  one  of  the  several  agencies  of  the 
state,  called  into  existence  by  law  and  subject  to  con- 
stitutional and,  to  some  extent,  even  legislative  regula- 
tion. It  has  the  usual  powers  of  the  lawmaking  body 
over  its  membership  and  procedure,  and  has  its  only 
function  in  the  revision  or  making  of  the  fundamental 
law.  The  constitution,  however,  when  completed  is  not 
submitted  to  the  legislature  for  approval,  but  directly  to 
the  electorate  through  the  proper  officers  of  the  state. ^ 

'  For  a  discussion  of  differing  systems,  see  Borgeaud,  and  Jameson. 


LAWMAKING   OR  LEGISLATION  273 

SPECIAL  REFERENCES 

Ancient  Law:  Harper  (Editor),  Lee,  Maine. 

Saxon  and  Germanic  Law:  Stearns  (see  p.  83),  Jenks;  Henry 
Adams  and  others,  "Essays  in  Anglo-Saxon  Law,"  1876. 

Russian  Law:  Kovalevsky. 

The  Written  Constitution:  Borgeaud;  Bryce,  "Studies"; 
Dealey,  Judson,  Stimson.  Also  "Select  List  of  Books  on 
the  Constitution  of  the  United  States,"  1903,  Library  of 
Congress. 

Constitutional  Convention:  Jameson;  Bryce,  "American  Com- 
monwealth," vol.  i,  note  to  Chapter  III  in  Appendix. 


CHAPTER  XIII 

RIGHTS   AND   POLITICAL   PARTIES 
Rights  Under  the  State 

In  the  development  of  democracy  the  question  of 
rights  has  played  a  most  important  part.    There  are  two 

distinct  questions  involved  in  the  discussion: 
ri"htT°^      (1)  the  theory  under  which  a  person  may  claim 

rights  at  all,  and  (2)  the  particular  rights  a 
person  may  claim  under  the  state.  Historically,  rights 
originate  in  society,  not  in  the  state,  and  consequently 
are  mjoral  in  their  nature;  but  as  the  state  gains  power 
and  attains  supremacy  in  social  life,  a  person  may 
legally  claim  before  the  law  only  such  rights  as  the  state 
is  willing  to  grant  and  to  maintain.  In  well-regulated 
democracies  the  state  willingly  guaranties  to  its  citizens 
all  rights  necessary  for  individual  and  social  develop- 
ment; but  in  tyrannical  and  badly  managed  states,  such 
rights  may  be  denied  or  ignored;  in  which  case  citizens, 
lacking  the  essentials  for  a  manly  and  honorable  exist- 
ence, may  become  inert,  cowardly  and  base.  From  the 
beginnings  of  history'-,  therefore,  there  can  be  traced  in 
all  energetic  communities  a  demand  on  the  part  of  the 
people  that  their  rights  be  recognized  by  the  state  and 
guarantied  to  them  by  proper  governmental  regulation 
and  supervision.  In  primitive  hordes  and  in  tribal 
organizations  all  members  of  the  community  enjoyed, 

274 


RIGHTS  AND  POLITICAL  PARTIES  275 

theoretically,  at  least,  equal  rights  and  equal  protection. 
Under  patriarchal  organizations  distinctions  in  amount 
and  quality  developed  along  three  lines:  (1)  the  social 
subordination  of  women  to  men,  (2)  the  introduction  of 
slavery  and  (3)  social  distinctions  based  on  kinship, 
wealth  and  education.  The  culmination  of  this  tendency 
in  autocratic  monarchies  resulted  in  a  system  in  which 
the  monarch  theoretically  acknowledged  no  rights  in  his 
subjects  save  such  as  depended  on  his  will  and  whim. 
In  practice  this  despotic  will  was  restricted  by  long- 
standing customs,  by  social  institutions  and  by  the  ne- 
cessity of  securing  the  good  will  and  support  of  the 
dominant  part  of  the  community,  whether  army,  church 
or  nobility.  The  history  of  tyrannical  despots  shows, 
however,  to  what  lengths  such  a  king  may  go  when 
dominated  by  evil  passions.  Reaction  against  tyranny 
resulted  in  a  counter  movement,  in  which  men,  basing 
their  arguments  on  special  privileges,  long-standing  cus- 
tom, principles  of  justice  and  divine  sanction,  demanded 
a  reorganization  of  government  so  as  to  secure  to  them 
their  most  cherished  rights.  Political  democracy  is  the 
outcome  of  this  movement.  Its  development  in  any 
state  can  be  traced  by  noting  historically  how  one  right 
after  another  is  secured,  guarantied  and  made  part  of 
the  unwritten  or  written  constitution  of  the  state,  and 
how  these  privileges,  at  first  the  prerogative  of  the  few, 
gradually  were  won  by  the  many  and  finally  come  to  be 
looked  on  as  the  inherent  right  of  all.  These  rights  were 
not  won  by  the  people  from  their  governments  without 
many  struggles,  and  English- American  history  marks  by 
its  revolutions  these  struggles,  which  resulted  in  such 


276  THE   DEVELOPMENT   OF  THE   STATE 

guaranties  of  rights  as  may  be  found  in  Magna  Charta, 
in  the  several  bills  of  rights  of  the  seventeenth  century, 
the  bills  of  rights  of  the  American  colonies  and  in  their 
constitutions  and  the  numerous  constitutional  guaran- 
ties of  the  nineteenth  century  in  both  countries.  In- 
fluenced by  these  movements  came  the  revolutions  of 
France,  with  its  Declaration  of  Rights  and  its  series 
of  written  constitutions.  The  joint  influence  of  these 
several  centers  of  constitutional  agitation  is  plainly 
marked  in  the  fundamental  laws  of  Latin  America.  ^ 

These  rights  are  all  derived  from  the  one  inherent  fund- 
amental right,  the  right  to  life.  All  other  rights  pale  into 
The  insignificance  in  comparison  with  the  right  of 

menfai  Gvcry  mau  to  live  out  to  the  full  the  life  im- 
right.  parted  to  him.     Ethically  speaking,  every  per- 

son who  fulfils  his  social  obligations  should  be  allowed  to 
enjoy  the  privileges  of  life  under  the  guaranty  of  the 
state.  This  fundamental  right  differentiates  into  numer- 
ous individual  rights,  more  or  less  carefully  defined, 
secured  and  guarantied,  according  to  the  degree  of 
development  of  intelligent  democracy  in  political  com- 
munities. Every  citizen,  for  instance,  should  have  his 
life  safeguarded  and  secured  from  harm  by  the  military, 
police  and  judicial  power  of  the  state.  In  order  to  feed 
his  body  he  must  be  allowed  to  engage  freely  in  economic 
occupations,  and  should  have  the  aid  of  the  state  in 
multiplying  and  strengthening  his  economic  opportuni- 
ties and  in  safeguarding  his  property.     In  order  to  per- 

*  For  illustration  of  this,  see  article  by  the  author  on  "The  Spanish 
Source  of  the  Mexican  Constitution  of  1824,"  Texas  State  Historical 
Quarterly,  January,  1900. 


RIGHTS   AND   POLITICAL   PARTIES  277 

petuate  his  race  he  must  be  allowed  the  privilege  of 
marriage  and  parenthood  and  be  protected  in  his  family- 
rights.  In  order  to  develop  to  the  utmost  the  higher 
part  of  his  nature,  he  must  be  allowed  the  privilege  of 
freedom  of  conscience  and  of  worship,  the  privilege  of 
thinking  freely  and  expressing  his  thoughts  openly,  and 
he  should  be  aided  to  attain  such  development  by  gov- 
ernmental encouragement  of  education  and  a  free  press. 
Finally,  in  order  that  he  may  maintain  his  rights  and 
the  better  fulfill  his  obligations,  he  should  be  given  a 
voice  in  the  government.  Rights  won  by  the  energy 
and  self-sacrifice  of  one  generation  may  readily  be  lost 
by  their  descendants.  Constant  vigilance  and  civic  pa- 
triotism o.re  the  only  safeguards  of  liberty,  and  no 
governmental  guaranty  of  rights  can  be  effective  unless 
made  so  by  an  active  citizen  body  who  stoutly  defend 
and  augment  the  work  of  their  fathers. 

Such  guaranties  evidently  depend  not  so  much  on  a 
form  of  organization  as  on  a  general  intelligent  under- 
How  standing  of  the  forces  at  work  in  political  life, 

sl^e-^*"^^  If  all  men  should  attain  maturity  in  intellectual 
guarded.  development,  public  opinion,  working  through 
a  democratically  organized  government,  would  be  amply 
sufficient  for  all  purposes.  But  human  beings  are  only 
partly  intelligent.  Peoples  even  of  the  highest  civiliza- 
tion betray  on  occasion  their  savage  ancestry.  Under 
such  conditions  men  often  fail  to  see  a  question  in  its  truer 
meaning,  and  form  partial  and  distorted  opinions  in  re- 
gard to  public  policy.  Hence  there  regularly  exist  in 
political  communities  factions  and  parties,  each  favoring 
a  policy  that  in  its  opinion  is  essential  to  public  welfare. 


278  THE   DEVELOPMENT   OF   THE   STATE 

The  existence  of  these  factions  or  parties  provokes  dis- 
cussion, and  out  of  discussion  may  arise  wisdom  and  con- 
viction. In  our  present  stage  of  civihzation,  therefore, 
political  parties  have  an  important  function;  through 
them  rights  are  won  or  lost,  and  policies  good  or  bad 
adopted.  They  become  an  agency  through  which  the 
citizen  body  works,  in  order  to  attain  what  at  the  time 
seems  expedient  and  best.  For  this  reason  an  outline 
of  their  development  and  organization  becomes  nec- 
essary. 

Political  Parties 

In   despotisms  such   differences  of   opinion   find   no 

formal  expression,  and  tend  to  degenerate  into  intrigues 

for  place  and  power.     In  old-fashioned  mon- 

The  party     ^j-gi^^gg   ^j-^^j^   aristocracics  a   ruling   class  has 

system.  <-' 

power,  and  maintains  it  permanently  unless 
overthrown  by  war  or  revolution.  Under  such  systems 
assassinations  and  armed  rebellion  are  the  chief  means 
whereby  an  unpopular  government  may  be  overthrown. 
A  great  advance  was  made  when  the  principle  of  elec- 
tion was  definitely  established  in  governmental  organi- 
zations; war  chiefs  and  rulers  were  thus  chosen  almost 
from  the  beginnings  of  political  life.  A  still  greater  ad- 
vance was  made  when  elections  became  frequent  and 
affected  not  simply  the  head  of  the  state  but  all  offi- 
cers of  importance.  This  development,  so  well  known 
through  Greek  and  Roman  government,  has  proved  to 
be  a  powerful  agent  in  securing  stability  and  peace. 
For  when  the  system  of  election  has  become  a  familiar 
device  in  political  life,  if  a  body  of  citizens  become  hi- 


RIGHTS  AND   POLITICAL   PARTIES  279 

censed  at  the  policy  of  those  in  power,  instead  of  rushing 
to  arms  as  formerly  and  risking  all  on  their  success  or 
failure  in  war,  they  enter  on  a  political  campaign  and 
seek  to  overcome  their  opponents  at  the  ballot.  If  suc- 
cessful, the  defeated  party  resigns  power  to  the  victors 
and  awaits  an  opportunity  to  regain  supremacy  at  the 
next  election.  Such  a  system  has  obvious  advantages 
over  the  old  method  of  rebellion  or  assassination.  It 
can  be  at  its  best,  however,  only  when  all  really  impor- 
tant interests  can  thus  express  their  opinions,  otherwise 
revolutions  will  alternate  with  elections.  It  is  essential 
also  that  the  electorate  be  fairly  intelligent,  so  as  to  de- 
cide wisely  in  regard  to  opposing  policies,  and  also  that 
they  have  a  proper  regard  for  law,  so  as  to  use  honest 
methods  in  elections  and  to  be  willing  to  abide  by  the 
result. 

Evidently,  therefore,  an  efficient  party  system  can  be 

found  efficacious  only  when  all  interests  are  properly 

represented  and  when  the  electorate  is  made  up 

The  basis      of  intelligent  and  law-abiding  citizens.     The 

of  success.  o  o 

evils  SO  prevalent  in  the  elections  of  democra- 
cies are  not  inherent  in  democracy,  but  are  due  to  the 
neglect  of  fundamental  principles;  interests  are  not 
properly  represented,  large  numbers  of  the  electorate  are 
often  illiterate  and  ignorant  of  political  issues,  and  party 
managers  too  often  violate  every  law  of  political  ethics 
in  their  eagerness  for  victory.  Yet  "bossism"  in  poli- 
tics is,  after  all,  merely  a  passing  phase  of  a  period  of 
transition.  The  so-called  practical  politician  is  often 
the  veriest  tyro  in  actual  knowledge  of  political  princi- 
ples.    His  policy  is   crude   and  shortsighted.     Perma- 


280  THE   DEVELOPMENT   OF   THE   STATE 

nent  success  is  based  only  on  a  fostering  of  economic 
interests  of  all  the  people  and  on  a  strengthening  of 
their  intelligence  and  morality.  Corrupt  politicians  may 
seem  to  succeed  for  a  time,  but  they  ultimately  earn  for 
themselves  only  contempt  and  dishonor.  All  experience 
shows  that  honor  in  the  political  annals  of  any  country 
is"*paid  only  to  those  men  who  despise  tri(5kery  and  dis- 
honesty and  who  labor  intelligently  for  the  larger  in- 
terests of  their  fellow-citizens. 

Obviously,  therefore,  the  true  policy  of  government 
should  be  to  encourage  by  its  laws  intelligence  and 
honesty  in  government.  Corruption  and  betrayal  of 
trust  should  be  sternly  punished,  electional  systems 
should  be  so  adjusted  as  to  favor  honest  voters  and 
to  encourage  free  expression  of  intelligent  opinion.  No 
wise  democracy  can  afford  to  allow  the  primary,  the 
convention,  the  ballot  and  the  count  to  be  so  manip- 
ulated as  to  thwart  the  will  of  the  electorate.  The 
machinery  of  government  should  not  be  adjusted  for 
self-destruction  but  for  the  accomplishment  of  the  best 
work  in  the  most  economical  manner.  An  intelligently 
educated  citizen  body  with  guarantied  civil  and  political 
rights  and  with  proper  facilities  for  the  expression  of  its 
will,  may  always  be  depended  on  to  assert  its  privileges 
and  express  its  will.  Democracy  demands  energy,  in- 
telligence and  aggressiveness  for  its  maintenance,  and 
these  must  be  purposively  fostered  by  the  state  as  an 
indispensable  condition  of  its  own  prosperity. 

The  modern  party  system  originated  in  England 
through  the  cleavage  brought  about  by  the  revolution 
of  1688  and  the  separation  of  interests  that  arose  be- 


RIGHTS  AND   POLITICAL   PARTIES  281 

tween  the  supporters  of  the  new  dynasty  and  those  who 
favored  the  old.  The  real  interests  of  the  kingdom  were, 
however,  so  poorly  represented  in  parliament  that  par- 
ties were  really  made  up  of  combinations  of 
p"^es°^  factions,  voicing  petty  or  personal  interests 
rather  than  the  general  interests  of  the  state. 
The  reform  of  parliamentary  representation,  which  be- 
gan with  the  Act  of  1832,  allowed  the  truer  interests  of 
the  kingdom  to  be  represented  with  a  fair  degree  of  ac- 
curacy. The  result  was  the  development  of  the  English 
party  system,  which  has  been  imitated  with  more  or 
less  success  in  most  of  the  advanced  nations  of  modern 
times. 

In  the  United  States  of  America  the  higher  develop- 
ment of  political  life  and  the  early  rise  of  definite 
issues,  such  as  those  of  the  union,  the  tariff  and  slavery, 
resulted  quite  early  in  the  formation  of  clearly  defined 
political  issues  and  the  development  of  political  parties 
so  thoroughly  organized  that  they  seem  to  represent  the 
highest  possible  type  of  political  combination.  Differ- 
ences in  systems  of  party  organization  can  be  seen  by 
noting  the  main  features  of  the  three  chief  types  at 
present  existent : 

(1)  The  English  party  system  is  a  loosely  organized 
aristocratic  organization.  The  leaders  of  each  party, 
The  three  who,  if  the  party  be  in  power,  form  the  minis- 
types  of  try  of  the  king,  virtually  dictate  the  platform 
organiza-  and  policy  of  the  party.  The  local  organiza- 
*'""•  tions  of  the  party  control  their  own  districts 

but  seek  to  harmonize  their  policy  with  that  of  the  na- 
tional leaders.    These,  through  a  national  council,  may 


282  THE  DEVELOPMENT  OF  THE  STATE 

assist  the  local  organizations  in  their  campaign  by  send- 
ing speakers  and  "  literature."  The  leaders  of  the  party 
successful  at  the  polls  assume  the  reins  of  government, 
formulate  its  policy  and  remain  in  power  as  long  as  they 
can  control  a  majority  vote  in  the  house  of  commons. 
An  adverse  vote  on  some  question  of  importance  results 
in  their  resignation,  followed  by  a  new  election. 

(2)  In  France  there  is  practically  no  national  organi- 
zation of  parties  except  such  as  exist  by  tacit  under- 
standing. Each  electional  district  carries  on  its  own 
campaign  without  dictation  or  assistance  from  a  na- 
tional organisation.  Each  candidate  issues  his  own 
platform  and,  aided  by  his  friends,  advocates  his  own 
election.  Elected  members  assemble  in  groups  or  fac- 
tions according  to  general  unanimity  of  feeling,  and  that 
group  of  kindred  factions  having  a  majority  of  votes  will 
name  the  ministry  and  assist  it  in  the  formulation  of 
national  policy. 

(3)  In  the  United  States  of  America  national  elections 
occur  at  definite  intervals  of  two  and  four  years.  Each 
party  manages  its  campaign  through  a  central  or  na- 
tional committee.  This  committee  is  named  by  a  na- 
tional convention  made  up  of  delegates  from  the  com- 
monwealths. These  are  appointed  by  state  conventions 
made  up  of  elected  delegates  chosen  in  the  first  instance 
by  the  voters  of  the  districts  or  towmships  of  the  com- 
monwealth. In  this  way  the  national  committee  is 
theoretically  supposed  to  voice  the  wishes  and  policy  of 
the  party  voters  themselves,  and  in  its  work  uses  as  its 
agents  the  various  local  organizations  existing  in  the 
several  commonwealths.    The  national  convention  like- 


RIGHTS  AND   POLITICAL   PARTIES  283 

wise  formulates  the  national  platform  and  names  the 
presidential  candidates.  The  congressional  candidates 
are  named  by  conventions  in  the  commonwealths.  For 
that  reason  the  national  parties  become  also  state  parties, 
and  press  their  organization  down  to  the  primaries  so  as 
to  control  the  several  sets  of  delegates  who  ultimately 
will  name  the  congressional  candidates. 

These  three  types  of  political  party  organization  repre- 
sent practically  the  several  systems  of  organization  in  use 
among  developed  nations.  The  American  type  is  the 
most  complex  and  the  most  highly  organized  and  cen- 
tralized, but  the  powers  actually  exercised  by  the  or- 
ganization are  delegated  by  the  voters  themselves,  who 
by  theor}^  indirectly  name  all  leaders  and  policies.  The 
French  system  shows  the  national  party  organization  to 
be  an  artificial  unity,  made  up  frequently  of  discordant 
parts  not  fully  in  sympathy  with  their  elected  leaders  in 
the  ministry.  The  real  power  lies  in  the  local  district 
and  its  elected  member,  who  is  a  party  in  himself  and 
merely  confederates  at  will  with  like-minded  fellow- 
members. 

The  English  system  by  contrast  is  aristocratic  and 
takes  its  tone  from  the  will  of  its  natural  leaders,  who 
have  pushed  themselves  to  the  front  and  dictate  policy 
to  the  districts.  The  opinions  of  local  leaders,  however, 
must  always  be  taken  into  account,  in  order  that  there 
may  be  cheerful  and  enthusiastic  cooperation  on  their 
part  with  the  national  leadership  and  policy. 

Parties  are  properly  social  organizations  and  not 
part  of  the  legal  machinery  of  the  government.  They 
originate  or  disband  at  the  will  of  their  members  and  not 


284  THE   DEVELOPMENT   OF   THE   STATE 

in  accord  with  a  law  of  the  state.  But  so  important  are 
these  organizations  in  modern  states  that  governments 
regularly  seek  to  regulate  them.  The  extent  of 
mental  this  regulation  is  worthy  of  notice.  The  state 
regulation.  ^^  ^  ^,^|^  specifies  the  time,  place  and  manner  of 
conducting  elections,  and  in  some  of  the  American  com- 
monwealths even  regulates  the  primary  or  caucus.  ^  It 
may  regulate  the  sj^stem  of  nominations,  fix  the  form  of 
the  ballot  and  provide  officers  to  supervise  the  polls  and 
to  count  the  ballots.  It  may  even  bear  the  expense  of 
conducting  primaries  and  the  polls,  and  may  legislate 
against  corruption  and  bribery  and  limit  the  amount  of 
legitimate  expenses.  By  law  it  defines  what  persons 
may  exercise  suffrage  privileges  at  the  polls,  and  may 
also  define  suffrage  rights  at  the  primary.  Voting  has 
even  been  made  compulsory  in  certain  communities,  but 
with  small  success.^ 

Obviously  the  extent  of  regulation  will  vary  con- 
siderably in  different  states,  but  the  necessity  of  some 
regulation  is  so  manifest  that  no  state  which  allows 
political  parties  to  exist  at  all  permits  them  to  act 
without  any  regulation  whatsoever.  The  system  is  an 
excellent  illustration  of  the  fact  that  any  social  organi- 
zation, whose  interests  become  of  general  importance, 
must  submit  to  governmental  regulation  for  the  wel- 
fare of  the  state. 

*  The  primary  is  the  initial  gathering  of  party  voters  to  decide  on 
candidates  or  measures.  Tiie  term  caucus  is  often  used  in  the  sense 
of  a  primary,  but  is  more  properly  a  gathering  of  party  leaders  or 
representatives  for  the  formulation  of  a  party  policy. 

*  For  illustration,  see  Lowell,  "Continental  Parties,"  vol.  ii,  p.  273. 


RIGHTS  AND   POLITICAL   PARTIES  285 

The  issues  that  separate  poHtical  parties  are  generally 
economic.  The  state  is  so  important  a  factor  in  con- 
serving and  strengthening  economic  interests 
iss!i7s.  ^^^^  these  eagerly  seek  to  have  a  dominant 
voice  in  governmental  policy.  Parties  as  a  rule 
tend  to  identify  themselves  with  one  or  several  kindred 
interests  so  as  to  secure  the  support  of  those  engaged 
in  such  economic  occupations.  There  will  regularly  be 
representation  of  such  interests,  for  example,  as  those  of 
land,  commerce,  manufacturing,  mining  and  fishing;  or 
there  may  be  a  representation  of  economic  classes,  such 
as  labor  parties  or  agrarians;  or,  again,  some  economic 
policy  that  will  affect  numerous  classes  may  be  under 
discussion,  as  socialism  or  the  tariff  or  questions  of  coin- 
age. Occasionally  there  may  be  special  issues  of  tem- 
porary importance  involving  questions  of  religion,  mo- 
rality, education  or  some  particular  phase  of  international 
policy.  But  these  issues  are  not  lasting  nor  are  they 
broad  enough  to  form  the  basis  for  a  permanent  na- 
tional organization. 

Again,  entirely  independent  of  the  particular  issues 
at  stake,  a  party  ma}'  gain  strength  by  posing  as  a 
representative  of  conservatism,  favoring  a  policy  averse 
to  change  and  thus  securing  the  support  of  those  who 
prefer  known  ills  to  possible  dangers.  On  the  other 
hand,  a  radical  aggressive  party  may  win  support  by 
advocacy  of  fundamental  changes,  on  the  ground  that 
such  are  in  the  line  of  progress.  As  a  rule,  it  will  be 
found  that  the  issues  involved  in  an  election  turn  either 
on  an  economic  question  or  on  the  maintenance  of  the 
status  quo. 


286  THE  DEVELOPMENT  OF  THE  STATE 

SPECIAL  REFERENCES 

Rights:  Burgess  (voL  i,  Liberty),  Gooch.  Lieber's  works 
still  afford  excellent  discussions  on  this  subject:  Francis 
LiEBER,  "Political  Ethics,"  two  volumes,  1838,  Boston; 
"Civil  Liberty  and  Self-government,"  two  volumes,  1853, 
Philadelphia.  See  also,  Georg  Jellinek,  "Declaration 
of  the  Rights  of  Man  and  of  Citizens,"  1901.  For  French 
political  development:  Frank  M.  Anderson,  "Constitu- 
tions and  Documents,"  1789-1907,  published  1908,  Min- 
neapolis. 

Political  Parties:  Ostrogorski  (English  and  American),  Jeph- 
SON  (Enghsh),  Lowell  (Continental),  Macy  (American). 


CHAPTER  XIV 

CITIZENSHIP 

Resident  within  a  state  are  regularly  two  classes  of 

persons,  citizens  and  aliens.    The  citizens  of  a  state  are 

those  persons  who  are  domiciled  within  the 

anTaUens.    ^^^^^  ^^^  ^^^  ^^^^^  subject  to  Its  Sovereignty. 

Aliens  are  those  persons  resident  in  a  state  who 
owe  allegiance  to  another  state. 

Briefly,  it  may  be  said  that  the  rights  and  obligations 
of  aliens  are  fixed  by  the  laws  of  the  land  in  which  they 
are  resident,  including  in  the  term  laivs  those  treaty 
regulations  made  with  other  states  fixing  the  status  of 
their  citizens.  In  general,  civilized  states  grant  to 
aliens  full  protection  of  life  and  property,  conditioned  on 
their  obedience  to  the  law  of  the  land.  They  are  seldom 
allowed  political  privileges,  such  as  office-holding  or  suf- 
frage, and  are  regularly  exempt  from  military  service,  but 
they  may  be  required  to  pay  the  usual  taxes  assessed 
on  property. 

In  law  there  are  two  classes  of  citizens :  (a)  citizens  by 
birth,  and  (6)  naturalized  citizens  who  were  born  under 

foreign  sovereignty.  Corporations  or  artifi- 
duzenl"^     cial  persons  are  sometimes  called  quasi-citizens. 

A  corporation  is  an  organization  authorized  by 
law  to  act  as  a  single  person  for  the  purpose  of  transact- 
ing business  or  holding  and  transmitting  property.    The 

287 


288  THE   DEVELOPMENT   OF   THE   STATE 

duration  of  its  life  is  regulated  by  law  and  is  usually 
specified  in  its  charter;  its  rights  and  obligations  are 
civil,  not  political. 

Naturalized  citizens  are  regularly  granted  the  same 
status  as  native-born  citizens,  but  certain  high  offices 
may  be  withheld  from  them.  Native-born  citizens  only, 
for  example,  may  aspire  to  the  presidency  of  the  United 
States  of  America.  No  alien  may  claim  naturalization 
as  a  right.  It  is  a  privilege  which  may  be  granted 
or  refused  to  him  by  the  land  of  his  residence  at  its 
own  discretion.  As  the  allegiance  of  every  person  is 
owed  to  the  land  of  his  birth,  states  usually  regu- 
late by  treaty  the  relations  which  their  naturalized  citi- 
zens bear  to  the  country  of  their  former  allegiance, 
if  these  should  happen  to  travel  or  temporarily  reside 
in  it. 

Generally  speaking,  it  is  true  that  citizens  by  birth 
have  superior  rights  in  a  state  in  comparison  with  cor- 
porations and  naturalized  citizens.  It  must  not  be  in- 
ferred, however,  that  all  native-born  citizens  are  equal 
m  rights.  In  democracies  the  theory  is  that  all  persons 
are  equal  before  the  law,  should  equally  enjoy  the  pro- 
tection of  the  law  and  should  have  the  same  rights  and 
owe  the  same  obligations.  In  practice,  however,  ex- 
ceptions are  regularly  made  in  the  case  of  persons  under 
guardianship,  such  as  immature  children  and  persons  of 
unsound  mind.  For  historical  reasons  a  similar  clis- 
crimmation  is  made  against  women,  who  seldom  enjoy 
so  large  civil  and  political  privileges  as  men  nor  owe  the 
same  obligations.  To-day,  however,  in  some  countries 
discriminations  in  political  rights  based  on  sex  have  been 


CITIZENSHIP  289 

removed. 1  Again,  intelligence  is  so  essential  a  qualifi- 
cation in  democracies  that  illiterate  persons  are  often 
denied  political  privileges.  For  a  somewhat  similar  rea- 
son these  privileges  are  sometimes  refused  to  persons 
who  do  not  possess  a  fixed  minimum  of  taxable  property, 
the  assumption  being  that  a  man  incapable  of  acquiring 
property  lacks  proper  intelligence.  Naturally,  also,  in 
all  states  full  rights  of  citizenship  are  refused  to  persons 
convicted  of  crime  and  subject  to  punishment. 

In  states  having  aristocratic  or  monarchical  govern- 
ments there  are  other  discriminations  based  on  class  dis- 
tinctions. Ignoring  those  arising  from  social  and  re- 
ligious codes  we  find  in  such  countries  classes  varying 
considerably  in  their  respective  rights  and  obligations. 
Among  these  may  be  mentioned  (1)  the  governing  classes, 
including  royalty,  nobility  and  priesthood,  and  (2)  the 
economic  classes,  including  merchants  and  traders,  ar- 
tisans and  mechanics,  farmers  and  peasants,  serfs  and 
slaves.  The  extent  of  variation  found  in  the  sum  of 
rights  and  obligations  depends  on  local  conditions,  and 
the  system  of  each  state  must  be  studied  separately. 

The  Rights  of  Citizenship 

There  is  an  important  distinction  to  be  made  be- 
tween ethical  and  legal  rights.  Political  philosophers 
on  reflection  often  conclude  that  all  men  are  entitled  to 
such  rights  as  will  enable  them  to  develop  to  their  highest 
capacity.     The  American  Declaration  of  Independence, 

*  New  Zealand,  for  instance,  four  of  the  six  commonwealths  of 
Australia,  Finland,  and  six  western  states  in  the  Lmteu  Jjtates 
have  enfranchised  women. 


290  THE   DEVELOPMENT   OF   THE   STATE 

for  example,  asserts  that  "all  men  are  created  equal, 
that  they  are  endowed  by  their  Creator  with  certain 
^  ^.   ,     ,  inalienable  Rights,  that  amons;  these  are  Life, 

Ethical  and  .  . 

legal  Liberty  and  the  pursuit  of  Happiness."     In 

^^^  ^^'  these  days,  also,  men  talk  about  the  "right 
to  the  land,"  the  "right  to  a  living  wage"  and  the  "right 
to  work."  These  are  "natural"'  rights  in  the  sense  that 
they  voice  ethical  and  economic  ideals  toward  which  men 
may  strive.  But  they  are  not  legal  rights  unless  they 
are  recognized  by  the  law  of  the  land  and  are  secured 
to  citizens  through  the  courts  or  other  governmental 
agencies.  In  a  progressive  state  legal  rights  will  approx- 
imate toward  rights  claimed  by  idealists,  but  as  legal 
rights,  on  the  whole,  represent  the  practice  of  the  com- 
munity, there  will  always  be  a  distinction  between  them 
and  the  rights  demanded  in  ethical  systems.  Rights, 
therefore,  in  the  legal  sense,  are  not  inherent  in  the  in- 
dividual, but  arise  from  and  depend  on  the  law  of  the 
land. 

Legal  rights  may  be  divided  into  two  kinds,  civil  and 
political.  Civil  rights  are  concerned  with  the  protection 
of  life  and  property.  Political  rights  enable 
rights  their  possessor  to  share  in  the  exercise  of  gov- 

ernmental powers. 

From  the  international  standpoint  all  persons  enjoy- 
ing full  citizenship  are  recognized  by  modern  states  as 
having  the  right  of  expatriation,  that  is,  a  citizen  may 
voluntarily  renounce  or  abandon  his  allegiance  to  the 
land  of  his  birth.  On  the  other  hand,  a  citizen  may 
travel  in  foreign  countries  and  claim  protection  for  life 
and  property  from  his  state.     Within  the  bounds  of  his 


CITIZENSHIP  291 

state  a  citizen  has  the  right  to  demand  that  his  hfe  and 
property  be  protected  against  foreign  foes,  against  riot 
and  insurrection  and  against  assault  and  robbery.  Even 
if  a  citizen  merely  suspects  that  his  life  or  property  fe 
endangered,  he  has  a  right  to  demand  that  the  state  take 
proper  precautions  so  as  to  safeguard  him.  Property 
must  not  be  understood  in  the  sense  of  material  goods 
only,  it  includes  intangible  property,  such  as  claims  and 
rights  arismg  from  inheritance  and  contracts.  Under 
this  head  also  comes  the  protection  afforded  to  one's 
rights  in  family.  The  law  secures  to  him  his  share  in  in- 
heritances, grants  him  freedom  in  contracting  marriage 
and  secures  him  in  his  marital  and  parental  rights.  The 
sanctity  of  his  home  is  guarded  and  severe  punishment 
visited  on  violation  of  chastity.  This  protection  of  life 
and  property  is  afforded  by  the  state  through  its  war  and 
police  powers  and  the  several  agencies  associated  with 
these.  These  agencies  must  be  made  efficient,  for  the 
proper  protection  of  life  and  property  is  fundamental  to 
the  stability  of  any  state.  It  inspires  confidence,  stimu- 
lates devotion  to  government  and  encourages  industry 
and  frugality. 

In  modern  times  the  influence  of  democracy  is  deeply 
affecting  the  policy  of  the  state  in  respect  to  life  and 
General  property.  lu  addition  to  protection,  emphasis 
Tnd  hTp-  ^^  ^^^  placed  on  development.  Life  should  be 
piness.  broadened  and  made  happier,  and  opportunities 
should  be  furnished  so  as  to  allow  larger  possibilities  in 
the  acquisition  of  property.  Hence  citizens  have  the 
right  to  migrate  freely,  to  acquire  and  hold  property,  to 
engage  in  any  honorable  occupation,  to  form  business 


292  THE   DEVELOPMENT   OF   THE   STATE 

contracts  with  their  fellows  and  to  demand  govern- 
mental assistance  in  the  general  economic  field.  This 
aid  the  state  may  furnish  through  the  building  of  roads, 
bridges,  canals,  irrigating  works  and  systems  of  trans- 
portation. It  may  encourage  commerce  and  manufac- 
tures by  subsidies,  tariffs  and  technical  instruction.  It 
may  furnish  facilities  for  business  transactions  through 
a  postal  service  and  through  banks  and  a  stable  means 
of  exchange;  it  may  develop  agriculture  by  scientific 
investigation  and  experiment.  These  functions  which 
seem  optional  are  really  necessary,  are  demanded  by 
citizens  and  are  practically  extensions  of  rights,  since 
citizens  insist  in  their  demands  that  the  state  promote 
"general  welfare." 

In  the  same  way  the  right  to  life  now  involves  the 
"pursuit  of  happiness."  Happiness  implies  liberty  of 
mind  and  freedom  for  mental  development.  In  conse- 
quence, in  most  modern  states,  citizens  are  at  liberty  to 
think  freely  and  may  express  their  thoughts  openly  in 
conversation,  in  print  or  on  the  public  platform.  They 
may  assemble  freely  in  public  or  in  private,  and  have 
the  right  to  petition  the  government  on  any  subject 
whatsoever.  In  matters  of  religion  they  may  follow 
their  consciences  without  interference  from  the  state 
and  may  organize  whatever  agencies  they  wish  for  in- 
tellectual improvement.  In  fact,  the  demand  for  general 
and  broad  education  is  essentially  a  right  at  the  present 
time,  since  few  modern  states  venture  to  deny  the  right 
of  their  citizens  to  secure  a  liberal  education  at  either 
private  or  public  expense. 

Many  of  these  rights  are  historic,  tracing  back  to  an- 


CITIZENSHIP  293 

cestral  customs  and  to  codifications  of  these,  such  as  that 
contained  in  the  Magna  Charta.     Others  represent  later 

struggles  for  political  liberty,  such  as  the  Eng- 
riSiu"'^*     lish  bills  of  rights  of  the  seventeenth  century. 

The  most  famous  modern  statements  of  rights 
came  in  the  eighteenth  century  through  the  revolutions 
in  the  American  colonies  and  in  France,  and  were  formu- 
lated in  the  declaration  of  independence,  in  the  bills  of 
rights  contained  in  the  revolutionary  constitutions  of 
Virginia,  Massachusetts  and  Pennsylvania,  and  in  the 
French  declaration  of  the  rights  of  man,  issued  by  the 
national  assembly  in  1789.^  The. best  short  summary, 
though  not  complete,  of  well-recognized  legal  rights  is 
contained  in  the  amendments  to  the  constitution  of  the 
United  States  of  America. 

In  practice,  the  exercise  of  rights  is  subject  to  reason- 
able regulation.     A  citizen  may  speak  freely,  but  he 

must  not  slander  nor  libel  his  fellows;  he  may 
onTights"^  criticise  governmental  policy,  but  he  must  not 

incite  to  violence;  he  may  worship  God  as  he 
pleases,  provided  he  is  not  immoral  in  his  religious  prac- 
tices; he  may  engage  in  any  business  he  pleases,  pro- 
vided it  is  not  unlawful;  he  may  enter  any  profession, 
provided  he  has  the  requisite  skill;  he  may  marry  whom 
he  wishes,  provided  the  woman  gives  consent  and  he 
has  no  other  wife.  Such  regulations  are  often  specified 
in  the  laws;  in  other  cases  they  are  worked  out  by  the 
courts,  which  act  on  the  principle  that  the  law  allows  to 
every  citizen  the  utmost  freedom  consistent  with  the 
rights  of  others  and  the  general  welfare. 

'  See  reference  at  end  of  Chapter  XIII. 


294  THE   DEVELOPMENT   OF   THE   STATE 

Rights,  as  already  said,  are  based  on  the  law  of  the 
land  and  secured  through  governmental  agencies.  But 
if  the  citizen  body  as  a  whole  has  no  voice  in 
dghtr^'  the  making  of  laws,  and  if  the  government  is 
controlled  by  a  comparatively  small  per  cent 
of  the  citizens,  there  would  be  no  real  assurance  that 
general  rights  of  life  and  property  would  be  safeguarded. 
Experience  shows  that  a  small  class  in  control  of  the 
law  and  its  administration  too  easily  inclines  to  neglect 
general  interests,  especially  when  these  are  in  conflict 
with  its  own  private  interests.  For  such  reasons  there 
have  been  from  time  immemorial  demands  such  as  these : 

(1)  That  ofRce  be  considered  not  a  private  right  but 
a  public  trust,  to  be  administered  by  responsible  persons, 
who  may  be  called  to  account  for  violations  of  law.  (2) 
That  the  law  be  definite,  and  open  to  the  knowledge  of 
all.  (3)  That  the  citizen  body  have  a  determining  voice 
in  the  making  of  law,  either  directly  or  through  repre- 
sentatives. (4)  That  the  electorate  or  body  of  voters 
include  the  largest  possible  per  cent  of  the  entire  citizen 
body.  (5)  That  the  judicial  system  be  so  administered 
as  to  secure  to  all  citizens  their  rights. 

These  demands  are  now  acknowledged  in  democracies 
and  in  consequence  a  large  proportion  of  the  citizen  body 
have  the  political  right  of  suffrage.  This  power  has 
been  wielded  so  effectively  that  other  important  politi- 
cal rights  have  been  secured  one  by  one. 

In  addition  to  the  right  of  manhood  suffrage,  there  is : 
(1)  The  right  of  every  voter  to  aspire  to  any  office  in  the 
state.  (2)  The  right  to  fill  offices  through  election  or 
through  elected  representatives,  and  the  right  to  hold  all 


CITIZENSHIP  295 

officials  responsible  for  inefficiency  and  misconduct  in 
office.  (3)  The  right  to  determine  directly  or  through 
representatives  the  fundamental  law  of  the  land,  whether 
expressed  in  a  written  or  unwritten  constitution;  and, 
in  addition,  the  right  to  formulate  all  other  legislation. 
(4)  The  right  to  discuss  freely  and  to  criticise  openly 
governmental  measures,  policies  and  officials.  (5)  In 
English-speaking  countries,  the  right  to  assist  in  the 
settlement  of  judicial  cases  by  jury  service. 

In  these  rights  the  essential  point  is  that  the  citizens 
themselves  directly  participate  in  the  exercise  of  govern- 
mental functions,  or  name  from  their  ranks  those  who 
shall  perform  these  activities  in  the  name  and  for  the 
welfare  of  the  people.  President  Lincoln  ably  voiced 
the  democratic  ideal  in  his  famous  Gettysburg  speech,  in 
expressing  his  determination  that  "government  of  the 
people,  by  the  people,  and  for  the  people  shall  not  perish 
from  the  earth."  Naturally,  the  complete  attainment 
of  this  ideal  is  possible  only  in  high  civilization,  but  all 
modern  nations  tend  to  enlarge  more  and  more  the 
political  rights  of  their  citizens. 

These  rights  have  sometimes  been  attained  in  advance 
of  a  general  capacity  to  use  them  wisely,  with  the  result 
that  inefficiency  and  corruption  become  common.  Ex- 
perience, however,  which  is  always  the  best  teacher, 
brings  home  the  lesson  of  misgovernment  in  heavy  taxa- 
tion, excessive  death  rates  and  economic  disorders. 
Democracies,  therefore,  tend  to  emphasize  at  the  present 
time  character  and  intelligence  as  prerequisites  for  suf- 
frage; with  the  proviso,  however,  that  the  state  furnish 
free  general  education  and  further  morality,  so  as  to  de- 


296  THE   DEVELOPMENT   OF   THE   STATE 

velop  its  citizens  into  persons  capable  of  an  intelligent 
exercise  of  the  suffrage.  Compulsory  education  and  an 
efficient  system  of  schools  are  the  safest  guaranties  of  a 
democratic  suffrage.  Should  these  not  be  in  evidence, 
a  more  aristocratic  form  is  preferable  until  political  in- 
telligence becomes  common. 

The  Duties  of  Citizenship 

The  fundamental  duty  of  all  citizens  is  obedience, 

allegiance  and  fidelity  to  the  state.    The  state  voices  the 

unity,  the  will,  the  collective  interests  of  the 

Allegiance.  .  . 

entn-e  community.  Its  commands,  therefore, 
nmst  be  obeyed,  its  interests  are  superior  to  private  in- 
terests, and,  in  general,  no  ties  should  be  considered 
more  binding  than  those  that  bind  citizens  to  their 
country. 

The  duty  of  allegiance  implies  the  duty  of  service. 
This  may  involve  service  in  war,  or  in  the  maintenance 
of  domestic  peace,  or  service  in  public  office,  or 
on  public  works,  such  as  roads,  bridges,  build- 
ings and  fortifications. 

Every  capable  citizen  in  theory  may  be  summoned  to 
serve  in  the  army  or  navy  of  his  country.  This  may  in- 
volve compulsory  service  for  a  stated  term  of  years,  as  in 
France  or  Germany;  or,  as  in  Great  Britain  and  the 
United  States  of  America,  in  addition  to  a  small  standing 
army,  citizens  may  be  encouraged  to  form  volunteer 
forces,  and  by  training  in  times  of  peace  become  a  nu- 
cleus for  the  larger  army  needed  in  war.  In  case  of 
necessity,  however,  every  citizen  capable  of  bearing  arms 
may  be  summoned  to  war  and  is  in  duty  bound  to  ser\e 


CITIZENSHIP  297 

his  country  to  the  best  of  his  abiUty.  On  a  smaller  scale 
citizens  may  be  summoned  to  assist  the  authorities  in  the 
suppression  of  riots  or  rebellion,  or  to  aid  in  the  arrest  of 
disturbers  of  the  peace. 

The  same  principle  applies  in  respect  to  service  in 
office.  Inasmuch,  however,  as  offices  now  are  regularly 
salaried  and  are  honorable,  office-holding  seems  to  be  a 
privilege  rather  than  an  obligation.  Yet  if  the  burdens 
of  office  should  outweigh  its  emoluments,  the  state  could 
compel  its  subjects  to  assume  office.  This  is  exemplified 
by  jury  service,  which  is  shunned  and  yet  is  compulsory. 

Service  on  public  works  is  no  longer  common,  though 
still  known.  In  many  rural  communities  of  the  United 
States  of  America,  service  for  several  days  in  the  year  on 
the  public  roads  is  often  required.  In  case  of  urgent 
need,  however,  the  state  can  always  demand  the  services 
of  its  citizens,  and  in  times  of  war  or  sudden  disaster 
private  citizens  are  forced  into  service  and  compelled 
to  labor  without  pay.  This  was  illustrated  in  San 
Francisco  and  in  Italy  after  the  earthquakes,  where 
citizens  were  compelled  under  penalty  to  assist  the  sol- 
diery in  subduing  the  conflagrations. 

Taxation  largely  takes  the  place  of  compulsory  service 

in  modern  states.     When  citizens  become  free  it  is  often 

detrimental  to  their  interests  for  them  to  per- 

Taxation.'  .  i  i  i      •  m    • 

form  state  service  and  neglect  then'  own  affairs. 
Hence  they  readily  grant  a  small  per  cent  of  their  in- 
come in  lieu  of  service.  This  proves  advantageous  to 
the  state  also,  for  with  money  it  can  hire  willing  workers, 
always  more  efficient  than  compulsory  service.  In  mod- 
*  See  pages  65-69. 


298  THE   DEVELOPMENT   OF   THE   STATE 

ern  states,  therefore,  the  government  through  taxation 
secures  means  to  support  a  well-trained  permanent  army 
and  navy,  capable  officials  and  skilled  labor  for  public 
works.  As  the  citizens  themselves  fix  their  own  tax 
rates  in  democracies,  settle  the  items  for  expenditure 
and  supervise  the  auditing  of  accounts,  friction  is  thereby 
avoided.  Government  and  people  harmoniously  cooper- 
ate in  furthering  general  interests,  for  all  recognize  that 
joint  success  is  individual  benefit  and  that  the  injury  of 
any  part  becomes  the  detriment  of  the  whole. 

One  implication  from  this  power  of  the  state  to  demand 
service  and  tax  is  that  it  may  deprive  its  subjects  of  their 
property  at  will.  This  theoretical  power,  however,  is 
rarely  exercised  in  modern  times.  The  state  may,  if 
necessary,  take  away  or  even  destroy  property  without 
compensation;  and  this  is  frequently  done  in  times  of 
war,  conflagration,  famine  or  pestilence.  But  if  the 
general  safety  is  not  involved,  our  modern  theory  of 
rights  demands  that  the  state  pay  full  value  for  all 
property  confiscated  for  public  purposes.  Hence  in  the 
United  States  of  America,  for  instance,  though  the  state 
under  the  so-called  power  of  eminent  domain,  may  take 
land  and  other  property  for  public  use,  the  law  provides 
that  it  pay  adequate  compensation  to  the  owners,  the 
amount  of  which  is  left  to  be  determined  by  the  courts. 

Political  writers  fully  recognize  that  the  power  of  tax- 
ation is  the  very  heart  of  modern  governmental  systems. 
Arbitrary  and  unequal  taxation  discourages  enterprise 
and  economic  energy;  antiquated  methods  of  taxation 
are  ruinous  to  progress.  The  best  thought  and  wisest 
administration  must  be  given  to  this  department.    At 


CITIZENSHIP  299 

the  same  time  corruption  is  most  likely  to  flourish  where 
the  "spoils"  are.  For  such  reasons  the  modern  battles 
of  democracy  have  regularly  raged  about  prin- 
tance  of  ciplcs  of  taxatiou.  In  England  the  struggle 
taxation,      j^^^  j^^^^^  ^^^  ^j^^   "  coutrol  of  the  pursc";  in 

the  American  colonies,  that  there  be  "  no  taxation  with- 
out representation";  and  in  general,  that  all  taxation 
be  for  public,  never  for  private,  interests.  The  motive 
in  such  struggles  is  not  necessaril}'-  mercenary ;  experience 
show^s  that  when  the  citizen  body  as  a  whole  controls  the 
tax  rate  and  expenditures,  public  policy  loses  its  military 
aspects  and  attention  is  concentrated  on  the  upbuilding 
of  internal  improvements  and  systems  of  general  educa- 
tion. In  place  of  war  come  art,  science  and  happiness. 
When  such  conditions  exist,  patriotism  ceases  to  be  a 
duty  and  becomes  a  pleasure.  A  citizen  realizes  that 
his  welfare  and  that  of  his  kinsmen  and  friends  are  in- 
volved in  the  welfare  of  the  state.  The  natural  love  for 
the  land  of  one's  birth  is  strengthened  by  an  appreciation 
of  its  helpfulness  in  securing  happiness  and  prosperity. 
Patriotism  is,  therefore,  intensified  in  devotion  and  gov- 
ernment grows  in  efficiency,  since  officials  know  that  they 
can  rely  on  popular  support,  and  citizens  understand  that 
the  government  has  their  best  interests  at  heart. 

SPECIAL  REFERENCES 

Citizenship :  In  addition  to  references  at  end  of  preceding  chapter; 

Brewer,  Hadley,  Maccunn,  Scherger,  Shaler. 
Naturalization:  Frederick  Van  Dyne,  "Naturalization  in  the 

United    States,"    1907,    Rochester;    American    Historical 

Revieiv,  vol.  ix,  p.  2,  A.  H.  Carpenter,  "Naturalization 

in  England  and  the  American  Colonies." 


CHAPTER  XV 

MODERN  DEMOCRACY 

Its  Development 

If  by  the  term  people  is  meant  the  collective  mass  of 
population  domiciled  within  a  state,  the  relation  of  such 

people  to  the  state  is  obvious ;  they  are  its  sub- 
^eo  le         jects,  owing  it  obedience  and  allegiance.    But 

they  are  not  mere  subjects;  they  are  citizens 
also,  for  they  have  rights  as  well  as  obligations.  After 
all,  the  only  justification  for  the  existence  of  a  sovereign 
state  must  be  found  in  its  helpfulness  and  utility  to  its 
people.  It  owes  to  its  citizens  protection  and  aid  in  their 
struggle  for  betterment  in  life.  Every  citizen  may  de- 
mand that  much  from  his  state,  and  should  rightly  feel 
aggrieved  if  it  fails  to  do  its  part.  Yet  the  failure  of  the 
state  to  do  its  part  has  been  the  problem  of  the  ages  and 
will  probably  remain  so  for  many  years  to  come.  States 
do  not  satisfy  the  demands  of  their  subjects  in  these  re- 
spects, and  indeed  governments  have  seldom  admitted 
that  they  were  in  duty  bound  so  to  do.  The  reason  for 
this  difference  of  opinion  is  not  far  to  seek.  Govern- 
ments have  regularly  been  aristocratic  in  the  sense  that 
the  power  of  the  state  has  rested  in  comparatively  few 
hands.  The  members  of  this  ruling  class  always  assume 
that  they  have  a  sort  of  inherent  if  not  divine  right  to 

300 


MODERN    DEMOCRACY  301 

rule,  either  because  of  the  quahty  of  their  birth  or  their 
wealth  or  their  intelligence.  As  rulers,  they  also  assume 
that  they  are  entitled  to  the  best  and  largest  share  of  the 
comforts  of  life,  and  that  this  share  should  first  be  se- 
cured before  much  thought  be  given  to  the  well-being  of 
the  other  members  of  the  community.  This  attitude  of 
mind  is  observable  in  all  parts  of  the  world  and  in  all 
kinds  of  civilization.  The  wise  and  the  strong  naturally 
win  the  rewards  of  life,  and  it  is  assumed  that  the  weak 
and  the  lowly  should  be  content  with  bare  subsistence. 

On  the  other  hand,  the  democratic  ideal  of  citizen- 
ship has  always  had  advocates.  Whether  "  all  men  are 
The -deal  Created  equal"  or  not,  seems  not  so  important 
ofdemoc-  as  the  question  whether  all  men  can  be  made 
^^'^^'  equal;  and,  if  so,  whether  they  should  not  be 

given  the  opportunity  to  become  so.  Religion  has  en- 
deavored to  answer  by  assuring  men  of  their  equality  in 
heaven  or  in  God's  sight,  but  men  rather  tend  to  prefer 
their  equality  on  earth,  possibly  so  as  to  be  the  better 
prepared  for  it  in  the  other  world.  The  state  has  so 
regularly  favored  inequality  that  some  theorists  ^  hold 
that  equality  will  become  possible  only  when  the  state 
is  abolished.  Believers  in  the  utility  of  the  state,  who 
also  advocate  equality,  argue  that  it  can  best  be  ob- 
tained through  the  proper  utilization  of  governmental 
age-ncies.  Whether  governments  will  remain  aristo- 
cratic or  ultimately  become  democratic  is,  however,  a 
question  for  future  settlement.  For  a  proper  under- 
standing of  the  tendency  in  development  and  the  con- 
ditions that  affect  this  tendency,  however,  a  short  sketch 
'  Anarchists  and  individualists. 


302  THE   DEVELOPMENT   OF   THE   STATE 

of  the  development  of  the  democratic  idea  may  be  of 
service. 

In  primitive  hordes  and  in  the  early  patriarchal  period, 
so  far  as  their  systems  can  be  understood  to-day,  there 

prevailed  in  their  political  organizations  a  rude 
mocracy!'     ^"^^'^  ^^  dcmocracy,  based  on  the  right  of  every 

adult  male  to  participate  in  important  decisions. 
Numerous  illustrations  of  this  exist  to-day  among  savage 
tribes  and  in  village  communal  life  as  observed  in  Russia, 
India  and  China.  Women  generally  had  civil  rights  in 
life,  property  and  family,  and  at  times  even  had  political 
rights  when  heads  of  families. ^  There  was,  however,  a 
growing  tendency  for  a  woman  to  merge  her  legal  per- 
sonality into  that  of  brother,  father  or  husband.  Like- 
wise the  development  of  a  body  of  elders  composed  of 
heads  of  families  and  powerful  chieftains  tended  to  de- 
velop a  class  of  persons  having  peculiar  privileges  and 
unusually  large  governmental  powers.  Through  war 
came  slavery  and  a  consequent  servile  class  without 
rights,  mere  human  beasts  of  the  field.  The  multipli- 
cation of  wealth  in  the  form  of  flocks,  herds,  slaves  and 
landed  interests  accentuated  and  fixed  social  distinc- 
tions. Thus  developed  a  system  in  which  privileged 
classes,  noble,  learned  and  wealthy  men  exercised  all 
political  power,  forming  the  electorate  of  their  respective 
states.  Below  these  were  citizens,  freemen,  having  no 
political  rights,  but  with  fairly  well-defined  civil  rights 
of  life,  property  and  family.  These,  however,  were  not 
carefully  safeguarded  against  the  tyranny  or  despotism 
of  the  ruling  class.    At  the  bottom  of  the  scale  were 

*  In  the  Russian  mir,  for  instance. 


MODERN   DEMOCRACY  303 

freedmen  and  resident  aliens  having  a  few  civil  rights, 
and  a  vast  mass  of  slaves  with  practically  no  rights  what- 
soever. 

The  next  stage  of  development  came  with  the  rise  of 

commerce    and   industries.     Through   these    developed 

from  the  lower  classes  wealthy,  brainy  men, 

Commer-  -^  '  -^  ' 

ciaide-  too  important  to  be  ignored  in  the  govern- 
mocracy.  jjicntal  systcm,  who  slowly  acquired  larger 
civil  rights  and  some  share  in  political  power.  If  this 
form  of  wealth  and  influence  increased  so  as  to  over- 
balance in  importance  landed  wealth,  it  became  the 
really  efficient  factor  in  the  state,  sharing  powers  equally 
with  the  older  privileged  classes,  and  developing  thereby 
a  sort  of  democracy,  a  democracy,  however,  in  which  the 
mass  of  the  population — slaves,  freedmen  and  resident 
aliens — had  no  voice.  ^ 

In  those  days  popular  democracy  in  the  modern  sense 
would  have  been  impossible.  Citizenship  regularly  im- 
plied racial  kinship;  there  was  no  system  of  naturaliza- 
tion except  through  the  awkward  method  of  adoption. 
Furthermore,  slavery  was  looked  on  as  a  natural  and 
proper  condition  for  inferior  and  conquered  races,  and 
no  theorist  was  rash  enough  to  suggest  that  such  persons 
should  be  freed  and  have  governmental  powers  placed 
in  their  hands.  Consequently,  when  the  states  of  the 
classical  period  placed  the  suffrage  into  the  hands  of 
those  who  were  citizens  by  right  of  birth,  even  though 
these  numbered  a  minority  of  the  population,  they  be- 
lieved that  they  had  the  most  liberal  possible  form  of 

'  The  reforms  of  Solon  in  Athens  and  the  rise  of  the  Equites  in 
Rome  are  illustrations. 


304  THE   DEVELOPMENT   OF  THE   STATE 

government,  and  in  their  theories  set  up  their  systems 
as  the  ideal  of  poHtical  development. 

Many  causes  contributed  to  the  development  of  a 

larger  idea  of  democracy.     The  Stoic  and  the  Christian 

teaching  of  human  rights,   individuality  and 

Popular       brotherhood,  and  the  extension  of  Roman  cit- 

democracy.  ' 

zenship  throughout  the  civilized  world  tended 
to  dignify  the  individual  and  to  discountenance  slavery, 
especially  as  this  institution  was  losing  its  economic  im- 
portance through  the  rise  of  a  system  of  vassalage.  The 
economic  development  of  western  medieval  Europe  along 
lines  of  commerce  and  manufactures  emphasized  the 
need  of  a  more  energetic  laborer  than  the  slave  or  the 
serf,  as  a  necessary  factor  in  this  development;  and  the 
increase  of  general  intelligence  through  the  printing  press 
and  commercial  intercommunication  hel}ied  to  bring 
about  a  condition  in  which  the  privileged  classes  became 
relatively  less  useful  to  the  state  and  began  to  lose 
their  monopoly  of  political,  social  and  intellectual  priv- 
ileges. ^Yhim  slavery  and  its  modified  form,  serfdom, 
had  disappeared  from  the  larger  part  of  Europe,  and 
when  militarism  and  dogmatic  authority  had  yielded 
place  to  commercialism  and  intellectual  flexibility, 
modern  democracy  became  possible  and  slowly  be- 
gan to  push  its  way  into  the  governmental  systems  of 
Europe. 

It  is  well  to  note  that  the  democratic  movement 
hitherto  outlined  is  fundamentally  not  along  humani- 
tarian lines.  It  is  simply  the  desire  of  the  more  capable 
part  of  the  masses,  who  were  called  into  a  life  of  larger 
activity  through  economic  need  of  intelligent  labor,  to 


MODERN   DEMOCRACY  305 

secure  for  themselves  a  share  in  governmental  power. 
Their  interests  demanded  it,  and  they  were  willing  to 
fight  for  it  if  necessary.  But  every  advance  they  made 
afforded  a  larger  place  for  those  immediately  below 
them.  As  long  as  there  was  an  increasing  demand  for 
more  intelligent  labor,  the  supply  was  forthcoming;  and 
as  it  came,  it  sought  after  political  power.  This  power 
was,  of  course,  the  means  to  an  end.  Men  desired  to  be 
secured  in  their  rights  and  possessions,  and  knew  that 
these  would  be  safer  as  they  gained  a  larger  voice  in 
government. 

The  rapid  development  of  machinery  in  the  eighteenth 
and  nineteenth  centuries  stimulated  a  demand  for  labor 
^  ^  of  any  sort,  and  all  men  became  important  in 

equality  industrial  countries.  The  free  farming  lands 
of  man.  ^^  ^^^  American  colonies  also  called  for  workers 
and  gave  men  opportunity  to  show  enterprise  and  in- 
telligence in  the  cultivation  of  the  soil.  Throughout 
this  period,  therefore,  developed  a  strong  emphasis  on 
man  as  man;  all  alike,  it  was  argued,  should  have  oppor- 
tunities to  attain  wealth  and  power.  Stoic  philosophy 
is  the  form  of  the  theory  of  natural  rights,  and  Chris- 
tianity with  its  ancient  emphasis  on  equality  and  fra- 
ternity again  came  to  the  front  in  support  of  this  new 
condition.  The  result  was  a  new  sort  of  democracy. 
Heretofore  political  power  had  developed  pari  passu  with 
economic  capacity,  but  then  began  a  tendency  to  give 
political  power  irrespective  of  economic  capacity.  If 
men  were  created  equal,  as  the  theory  was,  they  ought 
to  have  political  equality  at  least,  on  the  assumption 
that,  by  the  aid  of  the  ballot,  eveiy  man  could  win  his 


306  THE  DEVELOPMENT  OF  THE  STATE 

proper  place  in  the  social  S3^steni.  These  two  theories 
of  democracy  are  still  in  conflict.  The  one  argues  that 
the  possession  of  political  power  should  be  based  on  an 
intelligent  economic  capacity;  the  other  argues  that 
every  adult,  even  every  woman,  should  have  the  ballot, 
in  order  to  win  rights  and  build  up  a  capable  personality. 
From  the  first  come  laws  demanding  intelligence  tested 
by  an  educational  qualification,  and  economic  capacity 
tested  by  the  possession  of  taxable  property.  From  the 
other  come  demands  that  the  ballot  be  placed  in  the 
hands  of  every  person,  including  the  enfranchised  slave, 
the  illiterate,  the  property  less  and  even  subjects  in 
colonial  possessions. 

In  this  development  of  democracy  the  working  of  two 
principles  is  evident:  (1)  An  economic  condition  that  de- 
mands in  its  workers  capacity  and  intelligence 
of  democ-     will  tend  to  bestow  political  rights  on  such  men; 
^^^^'  (2)  broad,  ethical,  idealistic  principles,  like  that 

of  human  brotherhood,  may  influence  a  community  in 
such  a  way  that  a  government  may  create  by  law  a 
condition  of  political  equality  and  then  purposively  strive 
to  raise  the  social  and  economic  standards  of  its  people, 
that  they  may  exercise  with  efficiency  the  political  powers 
placed  in  their  hands.  We  may,  therefore,  distinguish 
three  historical  forms  of  democracy:  (1)  Tribal  or  com- 
munal democracy,  common  among  all  savage  and  bar- 
barian peoples  and  prevalent  in  the  earlier  forms  of 
village  life,  (2)  Conservative  democracy,  based  on  eco- 
nomic capacity  and  intelligence,  and  found  generally 
among  commercial  communities.  (3)  Radical  democ- 
racy, dominated  by  ideals  of  human  equality,  seeking  to 


MODERN   DEMOCRACY  307 

bestow  political  privileges  irrespective  of  race,  sex  or 
social  conditions. 

The  materialistic  democracy  of  the  second  class  easily 
develops  ideals  of  the  third  class  through  its  emphasis 
on  broad  knowledge  and  intellectual  capacity.  Every 
commercial  era  is  regularly  accompanied  by  Utopian 
dreams  of  a  still  broader  civilization,  when  every  man 
will  count  as  one  and  all  men  alike,  irrespective  of  birth, 
will  have  opportunity  to  develop  the  best  that  is  within 
them,  and  to  attain  any  station  to  which  their  capacity 
entitles  them  to  aspire.  Along  such  lines  dreamed  Plato 
in  commercial  Athens,  the  Christians  and  Stoics  under 
Roman  sway,  Sir  Thomas  More  in  the  Tudor  period,  the 
Levellers  of  Cromwell's  time  and  the  philosophers  of  the 
Social  Contract  during  the  last  three  centuries.  The 
social  dreams  of  agricultural  communities  are  anarchistic, 
like  Tolstoi's,  but  commercial  communities  develop  so- 
cialistic Utopias  like  those  of  Edward  Bellamy  i  and 
Laurence  Gronlund.^ 

It  should  be  evident,  therefore,  that  democracy  is  not 
merely  a  political  system ;  it  is  a  condition  for  human  de- 
velopment, an  ideal  of  social  life  and  a  philosophic  atti- 
tude of  mind  in  regard  to  the  larger  interests  of  humanity 
as  a  whole.  In  its  larger  and  truer  aspects  it  implies  the 
possibility  of  the  attainment  of  higher  civilization.  In 
its  political  aspect  it  is  merely  the  means  whereby  men 
attain  real  democracy;  for  the  ballot  in  the  hands  of  an 
intelligent  electorate  is  an  Aladdin's  lamp,  which,  rightly 
used,  will  lay  at  its  feet  the  social  treasures  of  the  world. 

'  "Looking  Backward"  and  "Equality." 

*  "Cooperative  Commonweal tJi"  and  "The  New  Economy." 


308  THE   DEVELOPMENT  OF   THE   STATE 

No  one  is  yet  prepared  to  prophesy  the  outcome  of 
this  movement  toward  a  radical  humanitarian  form 
Modern  of  dcmocracy.  In  quiet  nooks  of  civilization, 
experi-  s\ich.  as  Finland,  Sweden  and  Switzerland,  in 
ments.  the  "  Wild  West"  of  the  United  States,  and  on 
the  fringes  of  civilization  in  Australasia,  may  be  found 
the  vanguard  and  fighting  line  of  a  newer  democracy. 
Casting  precedent  to  the  winds,  the  governments  in  these 
localities  are  pressing  to  a  logical  conclusion  the  teaching 
that  all  political  power  should  be  exercised  directly  by 
the  people  themselves.  In  these  experimental  labora- 
tories they  seem  to  be  trying  every  conceivable  political 
policy.  The  electorates,  made  up  of  every  adult  man, 
and  for  the  most  part  of  every  adult  woman,  are  dictating 
the  principles  of  the  fundamental  law  and  are  working 
out  startling  policies  of  reform.  By  building  up  through 
careful  investigation  a  scientific  system  of  legal  regula- 
tion, they  hope  to  restrain  the  monopolistic  tendencies 
of  capital  and  to  elevate  standards  of  living  for  th,e  "  sub- 
merged tenth"  and  the  "depressed  classes."  For  these 
purposes  the  state  does  not  hesitate,  in  one  place  or  an- 
other, to  authorize,  as  necessity  demands,  governmental 
ownership  of  lands,  mines,  waters  and  the  usual  agencies 
for  transportation;  nor  to  embark  in  all  sorts  of  business 
enterprises,  even  to  the  extent  of  lending  money  at  low 
rates  of  interest  to  its  citizens  and  serving  as  "middle 
man"  for  them  in  the  disposal  of  their  products.  These 
regions  seem  more  anxious  to  abolish  pauperism  and 
crime  than  to  multiply  millionaires;  apparently  they 
listen  more  readily  to  the  demands  of  labor  than  to  the 
allurements  of  capital,  and,  strangely  enough,  seem  more 


MODERN    DEMOCRACY  309 

interested  in  the  health  and  education  of  children  than 
in  their  exploitation  in  the  industries. 

Yet,  after  all,  these  commonwealths  combined  form 
but  a  petty  fraction  of  human  society,  and  on  the  face  of 
it  there  seems  no  possibility  that  such  iridescent  visions 
of  democracy  can  ever  dominate  the  idealism  of  western 
civilization  as  a  whole.  Progress  as  a  rule  goes  on  halt- 
ing feet  and  with  leaden  step.  And  yet,  if  ever  "  young 
men  see  visions,"  there  may  come  in  their  hearts  an  en- 
thusiasm for  a  newer  civilization  founded  on  justice  and 
intelligence.  Then  these  seemingly  rash  and  well-nigh 
chimerical  experiments  in  democracy  may  pass  into  his- 
tory as  the  silver  lining  of  the  clouds  that  hid  a  brighter 
day  for  mankind. 

The  Trend  of  Democracy 

From  this  bare  outline  are  evident  the  rude  beginnings 
of  democracy  in  the  horde  and  the  tribe,  its  practical 
Modern  disappearance  under  static  patriarchal  mon- 
democratic  archics,  its  reappearance  with  the  rise  of  com- 
merce and  modern  industrialism  and  its  strug- 
gle for  rights — rights  of  life,  person,  family  and  property, 
the  right  to  have  a  voice  in  government  and  the  right  to 
combine  in  a  political  party  so  as  to  advocate  a  political 
policy.  Generally  speaking,  five  great  influences  have 
contributed  toward  this  end: 

(1)  A  marvelous  development  in  the  use  of  machinery, 
which  began  in  the  last  half  of  the  eighteenth  century  in 
England  and  which  has  completely  revolutionized  the 
entire  economic  life  of  civilization. 

(2)  The  social  contract  theories  of  the  English-Ameri- 


310  THE   DEVELOPMENT   OF   THE   STATE 

can  revolutions  and  the  political  influences  that  followed 
from  the  establishment  of  the  American  republic. 

(3)  The  powerful  changes  in  political  systems  brought 
about  by  the  French  theories  of  equality  and  fraternity 
and  the  influences  arising  from  the  French  revolution. 

(4)  The  great  religious  movements  of  the  eighteenth 
and  nineteenth  centuries,  which  stimulated  social  vir- 
tues and  emphasized  the  common  brotherhood  of  hu- 
manity. 

(5)  The  rise  of  a  system  of  free  common  and  higher 
education  and  a  remarkable  multiplication  of  scientific 
knowledge. 

Economic  changes  gave  the  conditions,  religion  and 
education  stimulated  and  trained  the  mind  and  political 
theories  taught  men  how  to  hold  fast  and  to  strengthen 
by  political  devices  what  had  been  won  for  civilization. 

But  these  great  influences  show  that  real  democracy 
comes  through  increased  mentality  and  implies  a  highly 
Democracy  dcvclopcd  civilizatiou.  For  this  reason  it  af- 
on^educa-  ^^^^^  ^^^  whole  of  social  life,  not  simply  the 
tion.  political  aspect  of  it.     It  means  that  in  eco- 

nomic life  no  man  should  be  born  into  a  condition  of 
economic  slavery;  not  that  every  person  should  be  fed 
and  supported  at  public  expense,  but  that  he  should 
have  opportunity  to  develop  his  capacity  for  work  in 
whatever  field  seems  best  suited  to  his  personality.  This 
involves  a  far  vaster  and  wiser  system  of  education  than 
any  that  yet  exists.  Plato,  in  his  '' Republic,"  rightly 
assumed  that  the  chief  object  of  government  was  the 
proper  training  of  its  citizens.  No  governmental  ex- 
penditure brings  such  tangible  returns  as  that  for  edu- 


MODERN   DEMOCRACY  311 

cation.  Educational  systems  are  yet  in  their  infancy  and 
largely  mechanical  and  unscientific  in  their  operations; 
but  perfection  cannot  be  attained  in  a  day  nor  through 
a  corps  of  poorly  trained,  wretchedly  paid  teachers. 

The  Japanese  have  shown  that  scientific  training  is 
the  chief  guaranty  of  victory  in  warfare.  Material  re- 
sources and  a  mere  form  of  equality  will  never  bring 
about  national  supremacy;  nor  does  success  ultimately 
lie  with  military  prestige  and  fighting  capacity.  Broad 
knowledge,  scientific  training  and  technical  efficiency 
are  needed  in  order  to  develop  a  people  able  to  accom- 
plish any  task  placed  before  them.  Democracy  ulti- 
mately depends  on  that  kind  of  training,  and  economic 
supremacy  in  the  twentieth  century  will  be  attained  by 
that  state  which  spends  its  treasures  most  freely  in  the 
wise  education  of  its  citizens. 

The  influence  of  the  modern  spirit  of  democracy  is 
well  illustrated  in  the  broader  national  aspects  of  the 
Democracy  day.  Ancicut  statcs,  in  their  relations  one  to 
and  inter-     ^^iQ  other,  wcrc  uarrow  and  intolerant.     Thev 

national  '  ^    _ 

policies.  were  suspicious  of  one  another's  motives, 
treacherous  in  their  dealings  and  considered  war  to  be 
their  natural  condition.  Since  the  development  of  the 
democratic  spirit,  international  law  and  diplomacy  have 
brought  about  a  different  attitude  of  mind.  Commer- 
cial needs  and  treaties  necessitate  joint  agreements 
among  states,  which  meet  in  international  congresses, 
discuss  matters  of  general  interest  and  agree  on  broad 
principles  of  policy.  Joint  action  is  taken  whenever  pos- 
sible, rival  interests  adjusted  and  harmonized  by  arbi- 
tration and  mediation-  wars  are  kept  from  spreading 


312  THE   DEVELOPMENT   OF   THE   STATE 

by  careful  diplomacy,  and  the  terms  of  peace  dictated 
by  a  conquering  state  must  meet  with  the  moral  ap- 
])roval  of  other  interested  states.  Through  the  process 
of  naturalization  citizenship  assumes  a  new  form.  By 
joint  agreement  of  states  a  person  now  may  witli- 
draw  from  his  parent  state,  forswear  allegiance  to  it 
and  secure  citizenship  in  the  state  of  his  choice.  If  in 
his  new  home  he  prefers  to  retain  his  natural  citizenship, 
he  will  be  as  carefully  safeguarded  in  his  rights,  though 
an  alien,  as  any  citizen  of  the  land.  This  great  privilege, 
now  so  freely  granted,  is  rapidly  breaking  down  narrow 
racial  barriers,  as  citizens  of  many  states,  persons  of 
different  races,  mingle  in  social  and  business  life,  ex- 
change ideas,  intermarry  and  develop  a  cosmopolitan 
race  and  civilization  that  ultimately  may  banish  entirely 
the  spirit  of  suspicion  and  war. 

In  their  internal  policy  states  rely  less  on  the  clinched 
fist  and  more  on  the  gray  matter  of  the  brain.  Intelli- 
gence at  home  is  a  guaranty  of  success  abroad.  Service 
in  consular  and  diplomatic  administration  increasingly 
depends  on  trained  and  proven  capacity.  The  quality 
of  the  personnel  of  the  civil  service  is  steadily  rising 
through  administrative  requirements;  improvements  in 
governmental  machinery  are  eagerly  sought  and  tried, 
and  legislation  is  losing  much  of  its  former  crudeness  and 
becoming  scientific. 

The  spirit  of  democracy  also  implies  a  kindlier  and 
more  sympathetic  religion  and  higher  standards  in  moral 
life.  This  is  shown  by  the  growing  humanitarianism  of 
religion,  and  the  rise  of  numerous  agencies  for  the  allevi- 
ation and  banishment  of  human  suffering.    Criminal 


MODERN   DEMOCRACY  313 

codes  are  becoming  humane,  cities  are  vigorously  push- 
ing the  betterment  of  vicious  conditions  in  social  life, 
Democracy  ^^^  labor  Organizations  countenanced  by  the 
and  the  state  are  working  earnestly  for  the  social 
interests  of  and  ccouomic  improvement  of  their  mem- 
humamty.  ]jqyq  Intellectual  development,  freed  from 
the  incubus  of  dogmatism,  has  broadened  out  into  an 
attempt  to  understand  the  whole  of  life,  and  through  its 
achievements  in  science  has  made  modern  civilization 
progress  by  leaps  and  bounds.  The  spiritual  and  the 
esthetic  side  of  life  has  been  deepened  by  a  truer  insight 
into  ideals  of  harmony  and  beauty,  derived  from  a  wider 
experience  and  knowledge  of  physical  and  mental  phenom- 
ena. Life  for  the  average  man  has  become  a  happier, 
broader  and  more  generous  existence  than  that  endured 
by  his  fathers.  We  realize  now  the  futility  of  the  old 
belief  that  goodness  and  wisdom  are  innate  only  in  the 
pri\'ileged  classes.  By  throwing  open  the  opportunities 
and  prizes  of  the  world  to  all  men,  irrespective  of  birth, 
latent  energy  and  capacity  have  come  to  the  front.  One 
needs  but  to  investigate  the  pedigree  of  the  greatest 
men  of  modern  times  to  see  that  a  few  centuries  ago 
the  ancestors  of  such  men  were  probably  slaves  and 
serfs.  Had  old-fashioned  conditions  persisted,  the  great 
achievers  of  modern  civilization  would  in  most  cases  be 
humble  laborers  on  the  estates  of  some  robber  baron. 
After  all,  the  real  aim  of  social  life  is  not  to  develop  a 
small  class  of  highly  developed  persons  of  special  privi- 
leges, but  rather  to  attain  the  real  aim  of  the  state,  the 
development  of  an  energetic,  intelligent,  citizen  body 
and  high  standards  of  social  life. 


314  THE   DEVELOPMENT   OF   THE   STATE 

SPECIAL  REFERENCES 

General  Works  on  Democracy:  Bradford,  Giddings,  Lecky; 
American  Historical  Review,  vol.  i,  p.  1,  William  M, 
Sloane,  "History  and  Democracy";  H.  D.  Lloyd,  "New- 
est England,"  1900,  New  York;  Frank  Parsons,  "The 
Story  of  New  Zealand,"  1904,  Philadelphia;  J.  Allen 
Smith,  "Spirit  of  American  Government,"  1907;  W.  E. 
Smythe,  "Constructive  Democracy,"  1905;  Political  Science 
Quarterly,  vol.  x,  p.  404,  J.  W.  Burgess,  "Ideal  of  the 
American  Commonwealth";  Political  Science  Quarterly, 
vol.  xiii,  p.  514,  Jesse  Macy,  "Twentieth  Century  Democ- 
racy"; American  Journal  of  Sociology,  vol.  vi,  p.  307,  P. 
M.  Maurenbrecher,  "The  Moral  and  Social  Tasks  of 
World  Politics." 


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supplementary  reading. 

At  the  end  of  each  chapter  reference  is  made  to  a 
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The  State.     Revised  edition.     1898.     Boston. 
WooLSEY,  Theodore  D, 

Political  Science.     Two  volumes.     Second  edition.     1886. 
The  A.  L.  A.  catalogue,  which  contains  the  titles  of  8,000  vol- 
umes suitable  for  a  popular  library,  includes  many  other  works 
for  general  reference.     This  was  issued  by  the  Government  Print- 
ing Office,  Washington,  October,  1904. 

Numerous  articles  in  the  following  will  be  found  useful: 
Cyclopaedia  of  Political  Science,  edited  by  John  Joseph  Lalor, 
in  three  volumes,  1882-4,  Chicago,  and  Dictionary  of  Political 
Economy,  edited  by  R.  H.  Inglis  Palgrave,  in  three  volvunes, 
1894-9. 

The  chief  American  magazines  devoted  primarily  to  the  dis- 
cussion of  political  principles  are : 

Political  Science  Quarterly,  edited  by  the  faculty  of  Columbia 
University,  and  issued  from  March,  1886. 

American  Political  Science  Review,  published  quarterly  by  the 
American  Political  Science  Association  since  November,  1906. 

Yale  Review,  edited  by  the  professors  in  poUtical  science  and 
history,  and  issued  quarterly  since  May,  1892. 

Annals  of  the  American  Academy  of  Political  and  Social 
Science,  issued  bi-monthly  from  July,  1890. 

The  Annual  Reports  of  the  American  Historical  Association. 
Organized,  1884. 

American  Historical  Review,  issued  quarterly  from  October, 
1895. 


326  BIBLIOGRAPHY 

American  Journal  of  Sociology,  issued  bi-monthly  from  July, 
1895. 

The  publications  of  the  American  Economic  Association,  from 
March,  1886. 

American  Journal  of  International  Law,  issued  quarterly  by 
the  American  Society  of  International  Law  from  January,  1907. 

For  articles  in  general  periodic  literature  Poole's  Index  is,  of 
course,  the  standard  guide. 


INDEX 


Abraham,  W.  H.,  115. 
Act,  The,  247. 
Adams,  Cyrus  C,  25. 
Administration,  39-40,  121,  129- 
134,  147-149,  153-167,  170- 
■  174,  181,  232,  242-245. 
Departments     of,       130-134, 

147-149,  159-160. 
Districts    of,     121,     164-167, 

181,  263. 
Divisions  of,  156-164. 
Separation  of,  129,  133-143. 
Administrative  courts,  134,  170- 
174. 
law,  134,  171-174,  243-245. 
system,  French,  171-173,  232, 
244-245.     See  Civil  Service, 
Office,  Responsibility. 
Adoption,  303. 
Africa,  19,  20,  76,  96,  128. 
Age,  Patriarchal,  see  Patriarchal. 

Primitive,  see  Primitive. 
Age  of  beginnings,  28-29.     See 

Primitive. 
Agriculture,  16,  21, 27,  33-38,  43. 
developed     through     science, 
94-95,  292. 
Aim  of  democracy,  see  Ideals. 
Aliens,  31,  34,  39,  93,  178,  215, 

287,  303. 
Allegiance,  40,  54,  58,  240,  288, 

290,  296. 
Allotments,  90-92. 
Althing  of  Iceland,  189. 


Amalgamation  of  races,  77-80, 
122,  238,  253. 

Amendments  to  written  consti- 
tutions, see  Constitution 
and  Legal  Sovereign. 

America,  Continent  of,  21,  40, 
46,  96.     See  Latin  States  of. 

American    Commonwealths,    see 
Commonwealths, 
parallels,  173-174,  245. 
party  system,  282-283. 
revolution,  264-267. 
supreme  court,  142,  145-146, 
264. 

Ancestor  worship,  17,  32,  34, 
105-107,  110. 

Anderson,  Frank  M.,  286. 

Anglo-Saxon,  see  English-Ameri- 
can, Saxon. 

Animism,  17,  28,  32,  109. 

Appointment,  Power  of,  139, 
143,  147,  158-159,  177,  218. 

Arbitration,  Boards  of,  74,  86- 
87,  311. 

Areas  of  administration,  see 
Districts  of. 

Aristocratic,  Aristocracy,  119- 
122,  132-133,  144.  See 
Classes. 

Aristotle,  51,  119,  137,  140,  245. 

Army  and  na\T,  72,  101,  298. 
Rules  regulating  the,   73-74, 
161,  168-169,  244. 

Arnold,  W.  T.,  76, 


327 


328 


INDEX 


Artisan,  The,  101-102. 
Asia,  19-20,  27. 
Assessment  of  taxes,  69. 
Assimilation  of  civilizations,  see 

Amalgamation. 
Australasia,  217,  233.     See  New 

Zealand. 
Australia,    12.3,    220,    228,    265, 

289,  308. 
Austria-Hungary,  76,   125,   152, 

200. 
Authority,    17,    29,    32-33,    35, 

40,  58,  107. 
Autocracy,    135-136,    188,    241. 

See  Despotism. 
Autocratic    ruler,    56,    150-153, 

202-203. 
type  of  cabinet,  153-154. 
Autonomy,  35-36,  47. 

Local,    36,  120-121,   124-125, 

165-167,  188. 


Billson,  W.  W.,  242. 

Blackstone's  Commentaries,  140, 
252. 

Blood  revenge,  80,  82. 

Bluntschli,  J.  K.,  208. 

Body  of  citizens,  see  Citizens, 
politic,  30,  54,  57. 
politic.  National,  54,  120. 

Borgeaud,  Charles,  266,  272. 

"Bossism"  in  politics,  279-280. 
See  Corruption. 

Brooks,  John  Graham,  86. 

Bryce,    James,    115,     189,    246, 
273. 

Budget,  The,  68-69,  230. 

Bureaucracy,  134,  151-152,  161, 
171.     *See  Administration. 

Bureaus  for  the  study  of  legisla- 
tion, 261. 

Burgess,  J.  W.,  314. 

Burnett,  E.  C,  146. 


Baldwin,  S.  E.,  254. 
Ballot,  The,  220,  307.    .See  Elec- 
tions. 
Band,  The  war,  see  Warfare. 
Bank,  The.  .59,  99-100. 
Bartering,   The   system   of,    19, 

37,  97-98. 
Belgium,  219. 
Bellamy,  Edward,  307. 
Bentham,  Jeremy,  261. 
Bible,  The,  referred  to,  20, 81 ,  184. 
Bicameral  system,  136,  191. 
Bill  of  attainder,  174-175,  204. 
Bills,  Initiation  of.  .sve  Initiation. 

of  rights,  see  Rights. 

Private,  special  or  local,  196- 
198. 

Public,  196-198. 


Cabinet,  The,  133,  15,3-156,  197, 

199-200,  221.     ,Sfee  Elders. 
Caesar,  24,  76,  89. 
Caine,  Hall,  189. 
Campbell,  Douglas,  234. 
Cannibalism,  22,  31-32. 
Canon  law,  248. 
Canton,  The  French,  165. 

The  Swiss,  165,  224. 
Carpenter,  A.  H.,  299. 
Castes,  177.     See  Classes. 
Caucus,  The,  200-201,  284. 
Centralization,  Centralized,  39- 

40,  47,   121,   125,   166-167. 

See  Autocracy. 
Charters,  265. 
Checks  and  balances,  137,  140, 

192,  224. 


INDEX 


329 


China,  27,  35,  80. 
Church,  The,    13,   81,    114-115, 
248. 
in   relation   to  the  state,   see 

Relation  of. 
Roman    Catholic,     113,    232. 
See  Ecclesiastical. 
Cicero,  140. 

Citizens,  56,  158,  191,  278,  280, 
287,  294. 
Classes  of,  287-289. 
■  Duties  of,  296-299. 
Naturalized,  288. 
Rights  of,  274-277,  280,  289- 

296. 
Who  are?  54,  300. 
Citizenship,  39,  Chap.  XIV,  303- 

304,  312. 
City,  The,  21,38-39.    5ee  Urban. 
of  refuge,  84. 

state,  The,  19,  39-40,  46,  189. 
Civil    disputes,    Regulation    of, 
85-87,  168,  179,  242. 
law,  180,  242,  244. 
rights,  35,  242,  250,  290-293. 
service,     127,     160-164,     168, 
171-173,  244.     See  Office. 
Civilization,   14-18,  21,  26,  37- 
47,  52,  310-313. 
Fundamental    bases    of,    21, 

310-311. 
Growth  of,  14-18,  42. 
Material,  26,  41-47,  101-103. 
Political,  see  Political. 
Progress  of,  17-18,  42,  313. 
Static,  35,  61,  111,  252-253. 
•      Urban,    26,    37-41,   313.    See 
Primitive. 
Clan,  The,  29,  34-36,   46,    102, 
104,  106-107. 


Class  distinctions,   32,  67,   103, 

178,  215,  239,  275,  289. 
The  leisure,  24,  32,  215. 

Classes,  Privileged,  22-25,  71, 
73,  110,  132-133,  162,  177- 

179,  190,  193,  300-304,  313. 
See  Aristocratic,  Caste. 

Closm-e,  The,  196. 

Codes  of  law,  75,  237,  241-242, 

251. 
Codification,  39,  250-251,  255- 

257. 
Coinage,  69,  98-99. 
College,  The  electoral,  163. 
Colonization,  47,  52,  89,  95-97. 
Combat,  The  judicial,  84,  185. 
Commands,  37,  129,  237,  259. 
Commentators,  The  influence  of, 

180,  254. 

Commerce,  16,  18,  20-21,  24, 
26-27,  37^7,  97-101. 

Commercialism,  111,  203. 

Commissions,  74,  160,  174,  194. 

Committees  of  lawmaking  bodies, 
128,  194,  197-199. 

Common  law,  247,  250,  256. 

Commons,  English  house  of, 
202-204,  258-259.  See  Par- 
liament. 

Commons,  J.  R.,  209,  234. 

Commonwealths,  The  American, 
124,  126,  138,  160,  193,  214, 
225-228,  246,  248,  270,  272. 

Communal  ownership,  91-94. 

Communes,  The,  54. 

Community,  The  village,  see 
Village. 

Compass,  The,  21,  40,  95. 

Composite  forms  of  government, 
120.     See  Federative. 


330 


INDEX 


Compurgation,  84. 

Conditions  that  affect  develojv 

ment,  18-25. 
Confederation,  The,  36,  40,  72, 
78,  107,  120,  123,  189,  213, 
264. 
contrasted    with    federation, 
47,  123-125. 
Confiscation  of  property,  66,  69, 

184,  240. 
Connecticut,  265,  269. 
Conquest,  Effects  of,  76-78,  253. 
Conservatism,  35,  45,   110-112, 

285. 
Constitution. 

Definition  of  a,  207-208,  245. 
Every  state  has  a,  207,  245. 
The  written,    124,   207,   246- 

247,  260,  264-272. 
A    check    on    despotism,    56, 

265-266,  275. 
Amendments    to,    124,    212- 

214,  223-227,  266-270. 
Interpretation   of,    139,    142, 

260. 

Length  of,  270-271. 

Origin  of,  189,  264-266. 

Usual  provisions  of,  270. 

The  vmwritten,  207,  246. 
Constitutions   of    the    common- 
wealths,       see       Common- 
wealths. 
Constitutional  Convention,  The, 
129,    141,    206,    211,    213- 

215,  266,  271-272. 

As  agent  of  electorate,  214, 
269-270. 

Powers  of,  272. 
Constitutional  forms  of  govern- 
ment, 56-57,  207. 


Constitutional  law,  245-247. 
Consular  service,  74,  181,  312. 
Contempt,  Power  to  punish  for, 

169,  195. 
Continental  Europe,  see  Europe. 
Contract,  The    social,    59,    143, 

216,  265,  307,  309. 
Rousseau's    Social,    59,    138, 

214. 
Convention,  The  constitutional, 

see  Constitutional. 
The  party,  282-283. 
Coordinate  parts  of  government, 

126-127,  138,  160,  174. 
Corporations,  287. 
Corruption  in  government,  161- 

162,  176,  260,  279-280,  284. 
Council  of  the  king,  39,  130-136, 

153-156,  199-200,  257.    See 

Cabinet,  Elders. 
The  prefectural,  172. 
County,  The,  164. 
Court,  The  American  supreme, 

142,  145-146,  264. 
Courts,     Administrative,      134, 

170-174. 
Grades  of,  179. 

martial,  169.     See  Martial  law. 
Specialized,    157,    172,     180^ 

182. 
Crime,     63,     80-87,     308.     See 

Punishment. 
Criminal  law,  239,  241-242,  250, 

313. 
Custom,  35,  158,  180,  210. 
Customs  as  law,  75,  97,  103,  131, 

237-238,  241,  249,  252-253, 

258,  260. 
Czar,  The,   107,   135,   136,  152, 

221. 


INDEX 


■331 


Dallingcr,  F.  A.,  234. 
Dean,  Sidney,  Editor,  99. 
Decentralization,      see     Auton- 
omy. 
Decisions,    Judicial,     129,     131, 

173-174,  182,  248. 
Declaration     of     Independence, 

213,  289. 
Declaration     of     Rights,     The 
French,  171,  276,  286,  293. 
Decree,  The,  242-243,  248.    See 

Ordinance. 
Definitions,    51,    53-55,    63-64, 
119,    128,    142,    207,    221, 
238,  245,  284,  287. 
Deliberative  function.  The,  128- 

132. 
Del  Mar,  Alexander,  98. 
Democracies,  119-123,  193,  204. 
Democracy,  45,  52,  59,  120-122, 
138,  157,  215,  220-230,  233, 
268-269,  275-276,  279-280, 
295,  299,  Chap.  XV. 
Conservative,  306-307. 
dependent  on    education,  see 

Education. 
Development  of,  45,  120-121, 

138,  302-307. 
Direct,  121,  223,  269. 
Ideals  of,  see  Ideals. 
Newer,  220-230,  308. 
Modern,  120,  Chap.  XV. 
Popular,   122,   157,  215,  268, 

295,  303-306. 
Radical,  121,  220,  306-309. 
Trend  of,  309-313. 
Tribal,  302-303,  306. 
Dennis,  A.  P.,  150. 
Department,  The  executive,  see 
Executive. 


Department,  The  French,  54,164. 
The  judicial,  see  Judicial. 
The  lawmaking,  see  Lawmak- 
ing, 
of  administration,  see  Admin- 
istration. 

Departments  of  government,  see 
Government. 
Separation  of,  see  Separation. 

Despotism,  60, 132, 275.  See  Au- 
tonomy, Constitution,  Mon- 
archy. 

Devastation,  20,  75,  249. 

Development,  see  under  respec- 
tive headings. 

Dictatorship  in  Rome,  258. 

Differentiation  of  powers,  see 
Separation  of. 

Diplomacy,  29,  46,  53,  71,  74- 
75,  77,  147,  312. 

Direct  democracy,  see  Democ- 
racy. 

Discretionary  powers,  161,  170, 
173. 

Disputes,  Regulation  of,  see 
Civil,  Criminal. 

Distinctions  in  classes,  see  Class, 
in  law,  168. 

Districts  of  administration,  121, 
164-167,  181. 

Divine  right,  110,  132,  150,  152, 
240,  257,  259,  300. 

Divisions  of  administration,  156- 
164. 

Divorce,  60,  108,  181,  262. 

Dodd,  W.  F.,  135,  219,  251. 

Dogmatism,  304,  313. 

Domain,  see  Eminent  domain. 

Domestication  of  animals,  16, 
19,  31,  43,  105. 


332 


INDEX 


Domicile,  54,  287. 

Dominant,  see  Interests,  Races. 

Dominus,  108. 

Duma,  The  Russian,  136,  175. 

Duties,  see  Obligations. 


East,  The,  see  Orient. 
Ecclesiastical  courts,  180,  240. 
interests,  37,  58,  79,  113-115. 
law,  181. 

iSee  Church,  Religion. 
Economic  conditions.  Influence 
of,  18-24,  306,  309-310. 
issues  of  parties,  284-285. 
periods        of       development, 

Chap.   II. 
regulation,  88-104. 
Education,  18,  23,  60,  85,  109- 
111. 
Democracy  dependent  on,  289, 

295-296,  310-311. 
The  right  to  secure  an,  292. 
Eighteenth  century,  The,  21,  41, 
43,  44,  204,  232,  261,  304, 
309,  310. 
Elders,  The  body  of,  29,  35,  39, 
71,    91,    109-110,    130-131, 
148-149,     192,      215.      See 
Council  of  the  king. 
Elections,    191,   222,   229,   278- 
285.     See  Ballot,   Primary. 
Electoral  college,  The  American, 

163. 
Electorate,  The,  136,  Chap.  X, 
211-212,  222,  269,  279,  294, 
302,  308. 
a   governmental   agency,    57, 

143-144,  217-218. 
defined,  55,  216. 


Electorate,  Restrictions  on  pow- 
ers of,  143-144,  218-219. 
Separation  of  an,  158-159. 
Emancipation         proclamation, 

The,  268. 
Eminent  domain,  63,  69,  93,  298. 
Empire,  Centralized,  47. 
Confederated,  36,  46. 
Spiritual,  46,  115. 
World,  41,  46,  125. 
Empires,  19-20. 

England,    21,    44,    66,    79,    96, 
ISO,    221,    263,    271,    309. 
See  Great  Britain. 
English-American,  24,  173-174, 
196,  243,  245,  247,  250,  254, 
275,  309. 
English  parliament,  see  Parlia- 
ment, 
party  system,  281-282. 
type  of  cabinet,  154. 
Equality  in  law,  103,  162,  176- 
179. 
of   man,    216-217,    290,    301, 
305-306. 
Equites  of  Rome,  303. 
Equity  law,  180,  247,  260. 
Esthetic  development,  28,   111, 

313. 
Ethical  principles,  143,  238-   See 
Ideals,  Morals, 
rights,  see  Rights. 
Etiquette,  82,  183. 
Europe,    19-21,   40-41,   46,   76, 

134,  170,  185,  267. 
Executive  department,  126-132, 
138-139,   Chap.    VII,    169- 
170,  194,  257. 
Judicial  powers  of  the,   127, 
169-170. 


INDEX 


333 


Executive     department,     Law- 
making    powers     of     the, 
194,  257. 
Powers  of  the,  138-139,  147- 
148,  159. 

Expatriation,  The  right  of,  290. 

Experiments  of  democracy,  Rad- 
ical, see  Radical. 

Exploitation,  20,  47,  96. 

Family,  The,  13,  16,  27-28,  32, 

34,  37,  70,  80,  94,  104-109. 

Matriarchal,  16,  28,  32,  104- 

106. 
Modern,  16,  34,  105,  108-109. 
Patriarchal,    16,    28,    32,    80, 

101,  104-108. 
Relations  with    the  state,  70, 

104-109. 
Totemistic,  104-106. 
Farming  of  taxes,  The,  69. 
Federalist,  The,  146. 
Federation,   The,    47,    52,    120- 
127,  181,  193,  247. 
contrasted     with     confedera- 
tion, 47,  123-125. 
dual  in  form,  125-127. 
Importance  of,  47,  125. 
Federations,  The  chief,  125. 
Fetter,  Frank  A.,  25. 
Feud,  The,  82. 

Feudalism,  40,  69,  72,  192,  216. 
Fines,  A  system  of,  80,  184. 
Finland,  76,  233. 
Finlay  and  Sanderson,  167. 
Fish,  Carl  R.,  234. 
Fisheries,  Importance  of,  95. 
Flexibility  necessary  for    prog- 
ress, 18,  112,  304. 
in  government,  205,  233. 


Flocks  and  herds,  16,  31,  33,  38, 
67,  302. 

Food  supplies,  Importance  of, 
14-16,  19,  22,  30-34,  41, 
43-44,  58,  94-95,  105. 

Force,  The  rule  of,  30,  88-90, 
149. 

France,  41,  47,  96,  120-121,  134, 
141,  153,  166,  171-173,  192, 
197,  232,  267,  271,  276.  See 
French. 

Fraternities,  Social,  80-81,  83. 

Fraternity,  115,  232,  304,  310. 

Freedman,  103,  178,  303. 

Freedom,  241,  277,  291-293. 

Freeman,  E.  A.,  123. 

Freemen,  72,  103,  178,  215,  302. 

French  ideals,  232,  310. 
party  system,  282. 

French  system  of  administra- 
tion, 171-173,  232,  244-245. 

Friction,  Social,  239. 

Functions    of   government,    45, 
52,  56,  59,  128-130. 
Definition    of   five   forms   of, 
128-131. 

Fundamental  laws,  141,  207, 
220,  223,  245-246,  257,  266. 

Gaillard,  L.,  115. 
Gardiner,  S.  R.,  240,  266. 
Geffcken,  Heinrich,  115. 
General  welfare,  see  Welfare. 
Gens,  Gentes,  106-107. 
Germanic,  Germany,  24,  46,  76, 

108,  125,  135,  232,  255,  265. 
God,  84,  107,  110,  135,  185-186, 

293,  301.    See  Divine  right. 
Government,  Part  III,  265-268, 

280. 


334 


INDEX 


Government,   Classifications  of, 
47,  52,  60,  119-123. 
Definitions  of,  119,  144. 
Departments  of,  see  the  several 

departments. 
Federal,  see  Federation. 
Functions  of,  see  Functions. 
Limitations    on,    56-57,    64, 
265-268. 

Governmental  agency.  The  elec- 
torate a,  see  Electorate. 

Goodnow,  Frank  J.,  171,  243. 

Grants  of  money,  205,  259. 

Great  Britain,  41,  47,  120-122, 
152,  156,  166,  211-212.  See 
England. 

Greece,  19-22,  39,  41,  46,  59, 
95,  123,  231,  245.  See 
Homeric. 

Greek  classification  of  govern- 
ment, 119. 

Gronlund,  Lawrence,  307. 

Grotius,  Hugo,  75,  249. 

Groups,  Natural,  13,  58,  80-81. 

Guaranties,  Constitutional,  64, 
209. 

Guilds,  The,  81,  102,  248.  See 
Labor. 

Gumplowicz,  Ludwig,  78. 


Habeas  Corpus,  64. 
Hammurabi,  Code  of,  255. 
Happiness,  The  pursuit  of,  60, 

290-292,  299. 
Hardy,  A.  S.,  224. 
Haskins,  C.  H.,  187. 
Headship  of  the  state,  71,  121, 

132,  148-153.     See  King. 
Hearings,  Public,  195,  198,  223. 


Hebraic,  see  Israelite. 

Heralds,  74. 

Hereditary    right    or   rule,    34, 

149-150,  162. 
Hierarchy,  110,  134. 
Holy  Roman  empire,  40. 
Homeric  period,  36,  219. 
Home  rule,  41,  165-167 
Homing  instinct,  92. 
Hopkins,  W.  E.,  81. 
Horde,  The,   19,  29,  32,  36-37, 

46,  104-106,  123,  188,  215, 

302. 
Horde-tribe,  The,  105-106. 
Howard,  B.  E.,  187. 
Humanitarian,  78-79,  108,  304, 

312. 
Hunting  stage.  The,  16,  26-30. 

Ideals  of  democracy,  61,  70,  229, 
232,  261,  295,  301,  306- 
307,  312-313. 

Ideals  of  social  perfection,  17, 
25,  46,  113,  262.  See  Uto- 
pian. 

Ignorance  of  the  law,  85,  239. 

Impeachment,  127,  175,  204. 

India,  19,  27,  35,  79-80,  152, 
177,  231. 

Individualism,  17,  33,  57,  61, 
228,  301. 

Industrial  civilization,  see  Civil- 
ization. 

Industries,  The  larger,  102,  103. 

Infanticide,  22. 

Inheritance,  291. 

Inheritance  tax.  The,  59,  68. 

Initiation  of  bills,  136,  194-195, 
220-225. 

Initiative,  194,  221,  224. 


INDEX 


335 


Initiative  and  referendum,  143, 

159,  191,  206,  218,  220-228. 
defined,  221. 
Historical     development     of, 

220-222. 
Use  in  Switzerland,  224-225; 
in   the    United    States,    225- 

228. 
See  Referendum. 
Institutions,  Social,  see  Social. 
Instruction,  The  right  of,   143, 

162,  211,  227,  269. 
Instrument  of  Government,  266. 
Interests,  The   struggle  of,   34, 

188-191,     202,     255,     281, 

304-306. 
Dominant,  71,  162,  208.    See 

Races. 
International   law,    29,    46,    53, 

75,  78,  249-250. 
International  policies,  311-313. 
Interpretation,    Laws    changed 

through,  253,  254,  260. 
Interpretation  of  the  Constitu- 
tion, 139,  142,  260. 
Inventions,    Inventors,    23,    31, 

42-45,    78,    102,    233,    256, 

263. 
Ireland,  41. 

Israelites,  36,  41,  69,  89,  255. 
Issues,  Party,  see  Party. 

Jameson,  John  A.,  272. 

J.  Franklin,  206. 
Japan,  135,  232,  255,  267,  311. 
Jenks,  Edward,  240,  255. 
Judges,  157,  184,  253-254. 
Judicial  department,  The,  Chap. 
VIII. 

Development  of,  175-182. 


Judicial  Department,  The,  Func- 
tions of,  168. 
Separation  of,  127,  157. 

Judicial   powers   of   the   execu- 
tive, 127,  169-170. 
of   the   legislative,    127,    170, 
174-175. 

Judiciary,  Independence  of  the, 
157,  176-177,  264. 

Jurisprudence,  52. 

Jurisdiction,    Specialized,    180- 
182. 

Jurists,  180,  207,  254. 

Jury,  The,  182,  184. 

service,  143,  218,  295,  297. 

Justice,  Abstract  principles  of, 
171-173,  253-254. 

Justinian,  180,  250,  255. 

Kidd,  Benj.,  95. 

King,  The,  36,  39,  110,  150-152, 

170,    179,    240,    257.     See 

Headship. 
King's  council.  The,  see  Council. 

seat,  The,  176. 
Kinship,  16,  34-36,  91-93,  104- 

108. 
Racial,  106-107. 
Ku-Klux,  82. 

Labor,  21,  24,  34-35,  43-44,  45, 
64,  99,  308. 
Organizations    of,    102,    313. 

See  Guild. 
Regulations  of,  102-104. 
Laboratories,  Political,  228-230, 

308. 
Laissez-faire,  216. 
Land,  16,  29,  33,  66-67,  88,  94. 
Law  of  the,  see  Law. 


336 


INDEX 


Latin  states  of  America,  153, 192, 
219,  232,  262,  267,  272,  276. 
Law,  Chap.  XI. 

Administrative,  134,  171-174, 
243-245. 

Admiralty,  249. 

and  Citizenship,  Part  IV. 

arising  from  custom,  see  Cus- 
toms. 

Codification   of,   see  Codifica- 
tion. 

defined,  238. 

Divine,  see  Divine  rule. 

How  changes  are  made,  253- 
263. 

Kinds  of,  see  Chap.  XI. 

Lynch,  82,  185. 

-merchant,  248. 

Natural,  75. 

of   the   land,    139,    157,    174, 
176,  237,  244,  252. 

Unchanging,  205,  252-253. 

See  Constitution,  Fundamen- 
tal, Roman. 
Laws,     Multiplication     of,     see 
Multiplication. 

of   Russia,  Fundamental,   see 
Russia. 
Lawmaking  department,  Chap. 
IX. 

Judicial    powers    of    the,    see 
Judicial. 
Legal  fiction,  37,  127,  253-254, 

260. 
Legal  rights,  see  Rights. 

Civil,  see  Civil. 

Political,  see  Political. 
Legal  sovereign.  Chap.  X,  122, 
141-142. 

defined,  142,  209. 


Legal  sovereign,  in  origin  some- 
times   revolutionary,   213- 
214. 
Relations  with  the  electorate, 
211-212. 
Legal  sovereignty,  136. 
Location  of,  210-213. 
Legislation,  Chap.  XII,  239, 243, 
256. 
Legahty  of,  263-264. 
Modern,  258-260. 
Scientific,  261-263,  312. 
through    ancient    councils    or 

assemblies.  258. 
through    the    executive,     see 
Executive. 
Legislative   bodies.   Committees 
of,  see  Committees. 
Composition  of,  192-194. 
Decline  of,  197,  206,  271. 
Development  of,  188-191. 
Functions  of,  204-206. 
Importance  of,  158,  206. 
Powers  of,  139. 
Privileges  of,  195-196. 
Legislative  policy,  Formulation 

of,  128-129,  197-202. 
Legislators,   Privileges  of,    195- 

196. 
Leisure  class.  The,  24,  32,  215. 
Levelers,  The,  307. 
Lex  talionis,  82,  184.  186. 
Library  of  congress,  167,  273. 
License  system.  The,  68, 104, 262. 
Lieber,  Francis,  286. 
"Life  and  property,"  55-60,  63, 

80,  119,  157,  276-277. 
Limitations      on      government, 
265-268. 
on  legislatures,  266,  269,  272. 


INDEX 


337 


Lincoln,  President,  268,  295. 

Lloyd,  H.  D.,  234. 

Lord  Chancellor  of  England,  180, 

247. 
Lowell,  A.  Lawrence,  167,  171, 

268,  284. 
Luxury,  19,  151. 
Lynnh  law,  82,  185. 

Machinery,  15,  21,  24,  27,  305, 

309. 
Governmental,    190-191,  260, 

280,  283,  312. 
Importance  to  civilization  of, 

41-44. 
Macy,  Jesse,  314. 
McClain,  Emhn,  251. 
Magna  Charta,    210,   256,   276, 

293. 
Malthusian  theory,  see  Popula- 
tion. 
Manufactures,  16,  21,  101-104. 
Market,  The,  21,  38,  97-98. 
Marriage,  59,  108,  262,  293. 
Martial  law,  64,  81.     See  Courts 

martial. 
Massachusetts,     138,     226-227, 

266,  270. 
Matriarchal      civilization,      see 

Family. 
Maurenbrecher,  P.  M.,  314. 
Mayo-Smith,  R.,  25,  78. 
Medium  of  exchange,  38,  98-99. 
Mentality,    Human,    14,    17-25, 

44-45,  310. 
Mentality   of   a   people,    24-25, 

30-32,  38,  60,  277. 
Merriam,  C.  E.,  234. 
Metals,  15,  18-21,  27,  98,  101. 
Metronymic,  16. 


Mexican   constitution   of    1824, 

276. 
Mexico,  21, 90, 120, 125, 152, 156, 

201,  219.     See  Latin  states. 
Militarism,  58,  74,  166,  305. 
Mines,  19,  38,  44,  90,  94,  96. 
Minister,  Prime,  see  Prime. 
Ministerial  powers,  161. 
Ministry,  see  Cabinet. 
Misdemeanors,  179. 
Monarchy,  The,  36,  39-40,  119- 

123,    135,    170,    193,    204, 

263-264,  274-275. 
Rise  of,  148-153. 
Money,  38,  98-100,  190. 
Monopolies,  102-103,  308. 
Montesquieu,  137,  140,  171. 
Morals,  17,  30,  60,  111,  178,  274, 

312.     See  Ethical,  Ideals. 
More's  Utopia,  238,  240,  307. 
Morgan,  Lewis  H.,  36. 
Multiplication  of  laws,  141,  196- 

198,  238-240. 
Municipalities,  97,  165,  193. 
Municipal  law,  250. 
ordinances,  243. 

Nadaillac,  The  Marquis  of,  25. 
Nation,  29,  46,  54,  104. 
National   states,    40-41,    45-47, 

75.     See  also 
Nationality,  Principle  of,  41,  76. 
Naturalization,  288,  303,  312. 
Natural  rights,  see  Rights. 
Navy,  The,  see  Army. 
"Newest  England,"  231,  234. 
New  Zealand,  Dominion  of,  122, 

220,  228-231. 
Political  laboratory   in,   228- 

230. 


338 


INDEX 


Nineteenth    century,    The,    44, 

190,  204,  276,  305. 
NobiHty,  The,  131-132,  189.  See 

Classes. 
Norman  Great  Council,  170. 
Nullification  of  law,  139. 

Obligations  of  citizenship,  37, 
58,  296-299. 

Office  and  Office-holders,  56, 
67-69,  160-164,  294,  297. 
See  Civil  Service,  Responsi- 
bility, Tenure. 

Oklahoma,  143,  226,  271. 

Opinion,  Public,  29,  56-57,  71, 
183,  195,  263. 

Opportunity,  Stimulus  of  eco- 
nomic, 23-24,  43. 

Ordeal,  The,  84,  185-186. 

Ordinance,  The,  142,  243,  257- 
258,  260.     See  Decree. 

Oregon,  143,  226. 

Organization  of  the  state.  Chap. 
VI. 

Orient,  Oriental,  19,  36,  80,  94, 
185,  255. 

Outlawry,  81. 

Oversight,  Power  of,  129,  139, 
147-148. 

Papacy,  The,  40,  46. 
Pardoning  power.  The,  177,  179, 

247. 
Parlements,  The  French,  171. 
Parliament,  The  English,    189- 

190,  217.     See  Commons. 
Parsons,  Frank,  234. 
Parties,  Political,  Chap.  XIII,  57, 

154,  191,  198,  309. 


Parties,    Governmental    regula- 
tion of,  222,  283-284. 
Issues  of,  284-285. 
Origin  of,  277,  280-281. 
Three  types  of,  281-283. 

Patents,  102-103,  262. 

Pater,  107-108. 

Patriarchal  civilization,  22,  24, 
27,  32-37,  46,  131,  215,  252, 
275,  302. 
family.  The,  see  Family. 

Patriotism,  263,  299. 

Patten,  S.  N.,  25. 

Peace,  63-64,  80-87,  183. 

Penology,  Modern,  85,  186-187. 

Penalties,  Legal,  182-187. 

Peon,  The,  24. 

People,  The,  defined,  54,  300. 
Mentality     of     a,     see    Men- 
tality. 

Period  of.  The,  see  the  several 
terms. 

Permanency,    16,     17,    29,    30, 
32-37. 

Persia,  19,  20,  134. 

Personal  ownership,  16,  28,  92- 
93,  101. 

Petitions,     194-195,    221,    223, 
259,  293. 

Philosophy,  15,  17,  24,  38,  51- 
52,  111-115,  231. 

Phoenicia,  20,  95,  231. 

Physical    conditions.    Influence 
of,  18-24. 

Plato's  Republic,  238,  263,  307, 
310. 

Poland,  41,  76. 

Police  power,  The,  63-65,  258. 
See  Sovereignty,  War  power. 

Policies,  International,  311-313. 


INDEX 


339 


PoUcy,  128,  139,  154-155,  167, 
173,  205,  280. 
Formulation  of  legislative,  see 
,    Legislative. 
Political  capacity,  45. 

civilization.   Development  of, 
18,    Chap.    II,    29,    39-41, 
45-47,  231-233. 
parties,  see  Parties, 
rights,  290,  294-296. 
science  defined,  51. 
Political  science,  Field  of,  51-52. 
General  divisions  of,  52-53. 
in  relation  to  sociology,  53. 
PoUtical  theories  and  theorists, 
52,    59,    60-61,    137,    161, 
231,  303. 
PoUtics,  The  art  of,  52. 

Practical,  213. 
Polybius,  140. 

Popular  democracy,  see  Democ- 
racy. 
Population,    18-25,    38-39,    43- 
44,  96,  122. 
Malthusian  theory  of,  41-42. 
Postal,  78,  98,  121,  263,  292. 
Powell,  T.  R.,  174. 
Power,  Kinds  of,  63-65. 

Limitations  on  legislative,  see 

Legislative, 
of  appointment,  see  Appoint- 
ment, 
of     sovereignty,     see     Sover- 
eignty. 
The  veto,  see  Veto. 
Powers  of  the  state,  Essential, 

Chaps.  IV,  V. 
Powers,  Separation  of,  see  Sep- 
aration. 
Precedent,  173,  269,  308. 


Prefectural  councils,  172. 
President  of  the  United  States, 

126,  152-155,  200,  212,  221, 

288. 
Previous  question,  The,  196. 
Priesthood,  The,   110-112,   132, 

150. 
Priestly  class.  The,  28,  109-112. 
Primary,  The,  191,  227,  280,  284. 
Prime  Minister,  The,   149,   154, 

204.     See  Cabinet. 
Primitive  civilization,  13,  26-30, 

33,    42-43,    86,    177,    274. 

See  Civilization. 
Privateers,  Use  of,  72. 
Private  law,  168,  172,  249,  250. 
Privileged  classes,  see  Classes. 
Privileges     of     legislators     and 

legislatures,  see  each  term. 
Procedure,  Rules  of,  in  law,  29, 

171,  173,  182,  239. 
in  legislation,  195-199,  267. 
Products,  Taxable,  67. 
Progress,    42,    309.     See   Flexi- 
bility. 
Prohibitions  of  law.  The,   242, 

261-262. 
Property,  16,  67,  238-239,  291, 

298. 
Prophetic  function,  110-111. 
Province,  The,  40,  54,  164,  188. 
Provinces,  Government  of  con- 
quered, 75-76. 
Psychical  conditions.   Influence 

of,  18-25. 
Public  law,  168,  172,  249-250. 
opinion,  see  Opinion, 
welfare,  see  Welfare. 
Punishment,     83-85,     182-187, 

261.     See  Crime. 


340 


INDEX 


"Race  Suicide,"  22. 
Races,  17,  23,  27,  45. 

Dominant,  15,  17,  24,  45,  76- 

78.     See  Amalgamation. 
Radical  experiments  of  democ- 
racy, see  Laboratories. 
Ratio  of  voting  population,  121- 

122,  294. 
Rebellion,  63,  65,  81,  110,  277. 

See  Revolution. 
Recall,  The  right  of,  143,   163, 

294. 
Referendum,  221,  269-270.    See 

Initiative  and  referendum. 
Relation  of  church  and  state,  37, 

70,  108-115,  156.     See  Re- 
ligion. 
Religion,    17,  28,  32,  34-35,  53, 

185,  216,  261,  285,  292,  301, 

310,  312.     See  Church. 
Remedies  of  the  law,  139,  168. 
Renaissance,  The  period  of  the, 

59,  112,  137,  220. 
Representation,      57,     120-122, 

163,  188-194,  215-216. 
Local,  122,  189,  216. 
of  privileged  classes,  162,  189, 

215. 
Proportional  or  minority,  191, 

209,  222. 
Responsibility    of    officials,    56, 

153-156,     175,    294.        See 

Office. 
Res  publica,  108. 
Retaliation,  183,  184. 
Revolution,  Right  of,   57,   144, 

210. 
Revolutions,  203-204,  259,  264- 

267,  280. 
Rights,  Chap.  XIII. 


Rights,  Bill  or  Bills  of,  56,  266, 
270-276,  293. 
Civil,  see  Civil, 
depend  on  capacity,  277.    . 
Ethical,  274,  276,  289-290. 
Fundamental,  276-277. 
Historical,  275-276,  293. 
Legal,  274,  289-291. 
Limitations  on,  293. 
Natural,  143,  290. 
of  aliens,  287. 
Origin  of,  274,  276. 
Political,  290,  294-296. 
safeguarded,  277-278. 
Roads,  38,  97-98. 
Robber  barons,  21,  313. 
Roman  administration,  232. 
law,    75,    180,    232,    247-249, 
250,  254-255. 
Rome,  19,  20,  36,  39-41,  46,  59, 

66,  95,  216,  231. 
Romero,  Matias,  187. 
Rousseau's  Social  Contract,  59, 

138,  214. 
Royal  power,  132-136,  150,  153. 
Rule,  Home,  see  Home. 
Rules  for  army  and  navy,  see 

Army. 
Russia,  27,  35,  41,  91,  107,  134- 
136,  154-156,  208,  221. 
The   Fundamental   Laws   of, 
135-136. 


Sacerdotal,  see  Priestly. 
Savage  civilization,   17,  22,  24, 

27.     See  Primitive. 
Saxon,  165,  170,  273. 
Scaife,  W.  B.,  187. 
Schaff,  Philip,  115. 


INDEX 


341 


Science,   Scientific,   20,   24,   44, 

73,  94-95,    97,    102,    111- 
114,  260,  311,  313. 

Scientific  legislation,  260-262. 
Secession,  124. 
Seeley,  J.  R.,  115. 
Self-interest,   The   principle   of, 

262. 
Senate    of   Russia,    The   ruling, 

136. 
Serfdom,  103,  304. 
Separation     of     administration, 
129,  133-1.34. 
of  church  and  state,  see  Re- 
lation of. 
of  governmental  powers,  130- 
146,  156,  159. 
Service,  39,  63-65,  296-297. 
Civil,  see  Civil, 
in  army  and  navy,  65,  66,  71- 

74,  184,  296. 
Jury,  see  Jury. 

Servius  TuUius,  216. 
Shire,  The,  164,  193. 
Single-tax,  The,  93. 
Slavery,  Slaves,  32-34,   72,   75, 
76,  103,  105,  179,  184,  275, 
302-304. 
Sloane,  Wm.  M.,  314. 
Smith,  Adam,  216. 
Smith,  J.  Allen,  314. 
Smythe,  W.  E.,  314. 
Social    Development,    Chap.    I, 

39,  261-262. 
Social    and    Political    Develop- 
ment, Part  I. 
institutions,     13-14,     18,    26, 

30-37,  39,  51,  109,  112. 
life,  14,  17,  22,  29,  58,  313. 
utility,  13,  179. 


Socialism,  93,  307. 
Sociology,  14,  17,  53,  113. 
Solon,  216,  303. 
Sovereign,    The   personal,   211- 

212. 
Sovereign    powers    in    exercise, 

70-115,  119,  144-145. 
Sovereignty  of  the  state,   Part 
II,  30,  40,  46,  107. 
Chap.  III. 

as  supreme  authority,  55,  57. 
defined,  55. 

identified  with  essential  pow- 
ers, 63. 
Legal,  see  Legal  Sovereign. 
Popular,  143. 
Ultimate,  142. 
Spain,  47,  90,  96. 
Speaker,  The,  200-201. 
Spencer  and  Gillen,  109. 
Spencer,  Herbert,  261. 
Sphere  of  influence,  96. 
Stages   in   the    development   of 

the  state.  Chap.  II. 
Standard  of  living,  22-23. 
State,  The,   14,  28,  30,  32,  33, 
37,  51,  61,  88,  106. 
defined,  54. 
Development    of.    Chap.     II, 

47,  58. 
Embryonic,  29-30,  58,  106. 
Essential  powers  of.  Chap.  IV. 
Importance  of,  51,  300. 
Organization  of.  Chap.  VI. 
Social  institutions  as  related 
to,  see  Church,  Family. 
Statesman's      Yearbook,     The, 

146. 
Statesmen,     Wise,     51,     61-62, 
161,  258. 


342 


INDEX 


Static  civilization,  35,  61,   111, 

252-253. 
Statute,  The,  142,  247. 
Stearns,  John  M.,  83. 
Stimson,  F.  J.,  86,  170. 
Stoicism,  108,  304-305,  307. 
Strike,  The,  86. 
Stubbs,  Bishop,  70. 
Subjects,  54,  55,  64,  67,  300. 
Suffrage,    The,     143,     217-219, 
284,  294,  303. 
Adult,    143,    217,    218,    228, 

302,  308. 
Manhood,  121,  122,  217,  294. 
Prerequisites    for,    288,    289, 

295,  306. 
Ratio  in,  see  Ratio. 
Woman's,  see  Women. 
Supreme  Court,  The  American, 

see  Court. 
Suzerainty,  36. 
Switzerland,  121,  122,  143,  153, 

223-225. 
Synod,  The  Holy,  136. 

Tables    of     Roman     law,    The 
twelve,  180,  239,  255,  256. 
Tabu,  The,  29,  242. 
Tariff  duties,  59,  68,  102. 
Taxation,  190,  297-299. 
Control  over,  139. 
Forms  of,  65-70. 
Improved    methods    of,     65, 

262,  298-299. 
Power  of,  63-65. 
Tenure  of  office,  160-164.     See 

Office. 
Teutonic  and  Teutons,  95,  255. 
Theological,  Theologian,  17,  112, 
115,  257. 


Theories,  Political,  41,  125,  167, 
310. 

Thirteenth    century,    The,    189, 
256,  258. 

Tool,  Importance  of  the,  15,  28, 
31-32,  42-44,  101. 

Torture,  The  use  of,   84,    184- 
186,  240. 

Totem,  The,  104-106,  109-110. 

Tourgee,  Albion  W.,  25. 

Town    or    Township,    The,    54, 
164-166. 

Trade,  19-21. 

routes,  19-21,  37-38. 
unions,  102. 

Trades,  The,  16. 

Treason,  169,  240-241. 

Treaties,  The  making  of,  74,  126. 

Treaty,  The,  74,  255,  265-267. 
An  early,  74. 

Trend  of  democracy,  see  Democ- 
racy. 

Tribal   democracy,   see   Democ- 
racy, 
organization,  90,  274. 

Tribe,  The,   29,  31-34,  36,   46, 
104-106,  123,  215. 

Tribunal,  The  Hague,  74,  121. 

Tropics,  The,  23,  79,  95-96. 

Tudor  period.  The,  170,  190. 

Turkey,  134. 

Twentieth  century.  The,  80,  97, 
311. 

Tynwald,  The,  189. 

Tyranny,    153-156.       See    Des' 
potism. 

Umpire,   The   state   as,    84-87, 
242. 

Unitary  forms  of  government 
121-123. 


INDEX 


343 


United  States  of  America,  21,  47, 
52,  66,  121,  123-126,  154- 
156,  163, 166, 175, 192, 198- 
201,211-212,  221,  232-233, 
246,  257.    See  also  America. 

United  States  of  Mexico,  see 
Mexico. 

Unity,  The  feeling  of  political, 
18,  29-30,  36-37,  40-41, 
120,  124-125. 

Urban  civilization,  26,  37-41, 
313.     *See  Civilization. 

Utility,  17,  30,  96,  186. 

Utilization  of  the  materials  and 
the  power  of  nature,  14,  15, 
26-27,  42^4. 

Utopians,  79,  228,  240,  245, 
307.     See  More,  Ideals. 

VanDyne,  Frederick,  299. 

Veblen,  T.,  115. 

Vermont    constitution    quoted, 

192. 
Veto  power,  The,  136,  140,  199, 

271. 
Village  community.  The,  34-36, 

38-40,  46,  90,  91,  106,  123, 

188,  302. 
Visions  of  democracy,  309. 
Voting,  219-220. 

War,  20,  22,  31,  36. 

Future  of,  78-80. 

Rules  of,  see  Army. 
War  band.  The,  57.     See  Horde. 


Warfare,    32-34,    57-58,    76-77, 

130,  249. 
War  power  of  the  state,  63-65, 

70-80,  126,  139,  208. 
Ward,  Lester  F.,  25,  261. 
Waters,  Navigable,  91,  94. 
Wealth,  31,  32,  38,  44-46,  99- 

100,  122,  162,  302-305. 
Webster,  Hutton,  80. 
Weights  and  measures,  99. 
Welfare,   General,   56,   63,    166, 

191,  220,  238,  277,  280,  292. 
Western  civilization,  24,  41,  44, 

75-76,  79,  97,  233. 
Will    of    the   state.    The,     128, 

•    238. 
Will,  The  written,  93,  108-109. 
Williams,  F.  W.,  81. 
Willoughby,  W.  W.,  37,  41,  52, 

62,  123,  264. 
Wilson,  Woodrow,  134,  216. 
Wisconsin  Legislative  Reference 

Department,  261. 
Bulletins  of,    163,   209,   222- 

223. 
Wolfeson,  A.  M.,  234. 
Woman  Suffrage,  217,  289,  306. 
Women,  31-32,  34,  75,  101,  105, 

177,  276,  288-289,  302. 
World  politics,  45,  52,  89. 

state.   Movements   toward   a, 

78-80,  311-313. 
Worship,  109-115. 

Ancestor,  see  Ancestor. 
Written   constitution.   The,    see 

Constitution. 


12 


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